Total Defeasance. Borrower shall have the right at any time after the First Open Defeasance Date and prior to the First Open Prepayment Date to obtain a release of the Lien of the Mortgage encumbering the Mortgaged Property (a “Total Defeasance”) upon satisfaction of the following conditions: (i) Borrower shall provide Lender at least thirty (30) days’ prior written notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date (the “Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total Defeasance; (ii) Borrower shall pay to Lender (A) all payments of interest due on the Loan to and including the Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents; (iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d) hereof; (iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral; (v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary in commercial lending transactions and subject only to normal qualifications, assumptions and exceptions opining, among other things, that (w) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (x) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (z) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law; (vi) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower; (vii) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstanding; (viii) Borrower shall deliver an officer’s certificate certifying that the requirements set forth in this Section 2.7 have been satisfied; (ix) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments; (x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and (xi) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below), no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Property.
Appears in 5 contracts
Samples: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)
Total Defeasance. Borrower shall have the right at any time after the First Open Defeasance Date and prior to the First Open Prepayment Date to obtain a release of the Lien of the Mortgage encumbering the Mortgaged Property (a “Total Defeasance”) upon satisfaction of the following conditions:
(i) Borrower shall provide Lender at least thirty (30) days’ prior written notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date (the “Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total Defeasance;
(ii) Borrower shall pay to Lender (A) all payments of interest due on the Loan to and including the Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary in commercial lending transactions and subject only to normal qualifications, assumptions and exceptions opining, among other things, that (w) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (x) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (z) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(vii) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstanding;
(viii) Borrower shall deliver an officer’s certificate certifying that the requirements set forth in this Section 2.7 have been satisfied;
(ix) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xi) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below), no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Property.
Appears in 5 contracts
Samples: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)
Total Defeasance. Borrower shall have the right at any time on or after the First Open Defeasance Date and prior to the First Open Prepayment Date to obtain a release of the Lien of the Mortgage encumbering the Mortgaged Property (a “Total Defeasance”) upon satisfaction of the following conditions:
(i) Borrower shall provide Lender at least thirty (30) days’ prior written notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total Defeasance;
(ii) Borrower shall pay to Lender (A) all payments of interest due on the Loan to and including the Total Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c2.7(d) and (de) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (w) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (x) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), and (y) if a Securitization has occurred, a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (z) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If a Securitization has occurred, if and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(vii) If a Securitization has occurred, Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstanding;
(viii) Borrower shall deliver an officer’s certificate certifying that the requirements set forth in this Section 2.7 (to the extent applicable) have been satisfied;
(ix) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xi) Borrower shall pay all reasonable costs and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below), no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Property.
Appears in 3 contracts
Samples: Loan Agreement (Digital Realty Trust, Inc.), Loan Agreement (Digital Realty Trust, Inc.), Loan Agreement (Digital Realty Trust, Inc.)
Total Defeasance. Borrower Borrowers shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Payment Date to obtain a release of the Lien of the Mortgage encumbering all (but not less than all) of the Mortgaged Property Properties (a “Total Defeasance”) upon satisfaction of the following conditions:
(i) Borrower Borrowers shall provide Lender at least thirty (30) days’ prior written notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date (the “Defeasance Date”) on which Borrower Borrowers shall have satisfied the conditions in this Section 2.7(a2.3(A) and on which it they shall effect the Total Defeasance;
(ii) Borrower Borrowers shall pay to Lender (A) all payments of interest due on the Loan to and including the Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage Mortgages and the other Loan Documents;
(iii) Borrower Borrowers shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c2.3(C) and (dD) hereof;
(iv) Borrower Borrowers shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower Borrowers shall deliver to Lender an opinion of counsel for Borrower Borrowers that is customary in commercial lending transactions and subject only to normal qualifications, assumptions and exceptions opining, among other things, that (wv) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xw) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance defeasance pursuant to this Section 2.7(a2.3(A), (yx) a Total Defeasance defeasance pursuant to this Section 2.7 2.3(A) will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, (zy) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
law and (viz) If if and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viivi) Borrower Borrowers shall deliver to Lender a confirmation in writing from the applicable Rating Agencies to the effect that the release of the Mortgaged Property Properties from the Lien of the Mortgage Mortgages as contemplated by this Section 2.7(a2.3(A) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstanding;
(viiivii) Borrower Borrowers shall deliver an officer’s certificate certifying that the requirements set forth in this Section 2.7 2.3(A) have been satisfied;
(ixviii) Borrower Borrowers shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xix) Borrower Borrowers shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xix) Borrower Borrowers shall pay all costs and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 2.3 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property Properties from the Lien of the Mortgage and the Assignment Assignments of Leases and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the LoanNote. In connection with any such the release of the Lien, Borrower Borrowers shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for each Individual Property for execution by Lender. Such release releases shall be in a form appropriate in the jurisdiction in which the Mortgaged applicable Individual Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower Borrowers shall provide all other documentation Lender reasonably requires to be delivered by Borrower Borrowers in connection with such release. Borrower Borrowers shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage Mortgages and the Assignment Assignments of Leases, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in 2.3(A) and Section 2.7(b2.3(B) below), no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the any Mortgage on any of the Mortgaged PropertyProperties.
Appears in 2 contracts
Samples: Loan and Security Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.), Loan and Security Agreement (Lightstone Value Plus Real Estate Investment Trust, Inc.)
Total Defeasance. (i) Provided no Event of Default shall have occurred and remain uncured and provided that Floating Rate Component is being simultaneously prepaid in full in accordance with the terms and conditions of this Agreement (or has been prepaid in full in accordance with the terms and conditions of this Agreement), Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Release Date to voluntarily defease the entire aggregate amount of the Fixed Rate Component and obtain a release of the Lien lien of the Mortgage encumbering Pledge Agreement by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(iA) Borrower shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days notice specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(iiB) Unless otherwise agreed to in writing by Lender, Borrower shall pay to Lender (A1) all payments of principal and interest due and payable on the Fixed Rate Component to and including the end of the Interest Accrual Period related to the Total Defeasance Date (provided, that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan Fixed Rate Component to and including the Defeasance Date and end of the Interest Accrual Period related to the next occurring Monthly Payment Date); (B2) all other sums, then if any, due and payable under the Note, this Loan Agreement, the Mortgage Pledge Agreement and the other Loan Documents; (3) all escrow, closing, recording, legal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Pledge Agreement on the applicable Collateral, the review of the proposed Defeasance Collateral and the preparation of the Security Agreement, the Defeasance Collateral Account Agreement and related documentation; and (4) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the portion of the Note related to the Fixed Rate Note or the Total Defeasance Event;
(iiiC) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d2.12(c) hereof;
(ivD) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(vE) Borrower shall deliver to Lender (1) an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary and other reasonably satisfactory qualifications, assumptions and exceptions opining, among other things, that (wI) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, ; (xII) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, ; and (zIII) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
; (vi2) If and to the extent required by the Rating Agencies, a non-consolidation opinion REMIC Opinion with respect to the Total Defeasance Event; and (3) a New Non-Consolidation Opinion with respect to Successor Borrower;
(viiF) If a Securitization has occurred, Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiiG) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.12 have been satisfied;
(ixH) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xI) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xiJ) Mortgage Borrower, Mezzanine A Borrower and Mezzanine B Borrower shall pay all costs have defeased the fixed rate portion of the Mortgage Loan, the Mezzanine A Loan and expenses the Mezzanine B Loan in full and paid down the floating rate portion of Lender incurred the Mortgage Loan, the Mezzanine A Loan and the Mezzanine B Loan in connection full, in each case, in accordance with the defeasanceMortgage Loan Agreement, including Lender’s reasonable attorneys’ fees the Mezzanine A Loan Agreement and expenses the Mezzanine B Loan Agreement.
(ii) If the Floating Rate Component is being simultaneously prepaid in full in accordance with the terms and Rating Agency fees conditions of this Agreement (or has been prepaid in full in accordance with the terms and expenses. If a Total Defeasance occurs conditions of this Agreement) and all Borrower has elected to defease the entire aggregate amount of the Fixed Rate Component and the requirements of this Section 2.7 2.12 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any the Collateral shall be released from the lien of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases Pledge Agreement and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the Loan. In connection with any such the release of the Lienlien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Total Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), a release of Lien lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the applicable jurisdiction in which the Mortgaged Property is located and contain that contains standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay , together with an Officer’s Certificate certifying that such documentation (1) is in compliance with all costsLegal Requirements, taxes and expenses associated (2) will effect such release in accordance with the release terms of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ feesthis Agreement. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)Article 2, no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged PropertyPledge Agreement.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Total Defeasance. (i) Provided no Event of Default shall have occurred and remain uncured and provided that Floating Rate Component is being simultaneously prepaid in full in accordance with the terms and conditions of this Agreement (or has been prepaid in full in accordance with the terms and conditions of this Agreement), Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Release Date to voluntarily defease the entire aggregate amount of the Fixed Rate Component and obtain a release of the Lien lien of the Mortgage encumbering Security Instruments by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(iA) Borrower shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days notice specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(iiB) Unless otherwise agreed to in writing by Lender, Borrower shall pay to Lender (A1) all payments of principal and interest due and payable on the Fixed Rate Component to and including the end of the Interest Accrual Period related to the Total Defeasance Date (provided, that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan Fixed Rate Component to and including the Defeasance Date and end of the Interest Accrual Period related to the next occurring Monthly Payment Date); (B2) all other sums, then if any, due and payable under the Note, this Loan Agreement, the Mortgage Security Instruments and the other Loan Documents; (3) all escrow, closing, recording, legal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Security Instruments on the Properties, the review of the proposed Defeasance Collateral and the preparation of the Security Agreement, the Defeasance Collateral Account Agreement and related documentation; and (4) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the portion of the Note related to the Fixed Rate Component or the Total Defeasance Event;
(iiiC) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d2.12(c) hereof;
(ivD) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(vE) Borrower shall deliver to Lender (1) an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary and other reasonably satisfactory qualifications, assumptions and exceptions opining, among other things, that (wI) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, ; (xII) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, ; and (zIII) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
; (vi2) If and to the extent required by the Rating Agencies, a non-consolidation opinion REMIC Opinion with respect to the Total Defeasance Event; and (3) a New Non-Consolidation Opinion with respect to Successor Borrower;
(viiF) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiiG) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.12 have been satisfied;
(ixH) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;; and
(xI) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and.
(xiii) Borrower shall pay all costs and expenses of Lender incurred If the Floating Rate Component is being simultaneously prepaid in connection full in accordance with the defeasance, including Lender’s reasonable attorneys’ fees terms and expenses conditions of this Agreement (or has been prepaid in full in accordance with the terms and Rating Agency fees conditions of this Agreement) and expenses. If a Total Defeasance occurs Borrower has elected to defease the entire aggregate amount of the Fixed Rate Component and all of the requirements of this Section 2.7 2.12 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any the Properties shall be released from the lien of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases Security Instruments and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the Loan. In connection with any such the release of the Lienlien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Total Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), a release of Lien lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the each jurisdiction in which the Mortgaged each Individual Property is located and contain that contains standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay , together with an Officer’s Certificate certifying that such documentation (1) is in compliance with all costsLegal Requirements, taxes and expenses associated (2) will effect such release in accordance with the release terms of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ feesthis Agreement. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)Article 2, no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged PropertySecurity Instruments.
Appears in 2 contracts
Samples: Loan Agreement (NorthStar Healthcare Income, Inc.), Loan Agreement (Northstar Realty Finance Corp.)
Total Defeasance. (a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment date that is ninety (90) days prior to the Effective Maturity Date to obtain a release of the Lien of the Mortgage Mortgages encumbering the Mortgaged Property all Individual Properties (a “Total Defeasance”) upon satisfaction of the following conditions:
(i) Borrower shall provide Lender at least thirty (30) days’ prior days written notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date Debt Service Payment Date (the “Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) 2.5.1 and on which it shall effect the Total Defeasancedefeasance;
(ii) Borrower shall pay to Lender (A) all payments of accrued and unpaid interest due on the Loan principal balance of the Note to and including the Defeasance Date and (B) all other sums, sums then due under the Note, this Loan Agreement, the Mortgage Mortgages and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.5.3 and Sections 2.7(c) and (d) 2.5.4 hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary in commercial lending transactions and subject only would be satisfactory to normal qualifications, assumptions and exceptions a prudent lender opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance defeasance pursuant to this Section 2.7(a)2.5.1 and that the defeasance does not constitute a “significant modification” of the Loan under Section 1001 of the Code or otherwise cause a tax to be imposed on a “prohibited transaction” by any REMIC Trust, (yC) a Total Defeasance defeasance pursuant to this Section 2.7 2.5.1 will not result in a deemed exchange for purposes of the Code and will not adversely affect effect the status of the Loan Note as indebtedness for federal income tax purposes, (zD) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
law and (viE) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viivi) If a Securitization has occurred, Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies to the effect that the release of the Mortgaged Property Individual Properties from the Lien of the Mortgage as contemplated by this Section 2.7(a) 2.5.1 and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates Securities issued in connection with the Securitization which are then outstanding;
(viiivii) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.5.1
(a) have been satisfied;
(ixviii) Borrower shall deliver a certificate of a nationally recognized Borrower’s independent certified public accounting firm reasonably acceptable to Lender accountant certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xix) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. .
(b) If a Total Defeasance occurs Borrower has elected to defease the entire Note and all of the requirements of this Section 2.7 2.5 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any all of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender Individual Properties shall execute any and all documents required to release the Mortgaged Property be released from the Lien Liens of the Mortgage their respective Mortgages and the Assignment of Leases any other Loan Documents and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the LoanNote. Borrower shall be released from its obligations under the Note and the other Loan Documents (except with respect to obligations that specifically survive the repayment of the Debt) upon the assumption of Borrower’s obligations by a Successor Borrower. In connection with any such the release of the LienLiens, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion)Date, a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the each jurisdiction in which the Mortgaged an Individual Property is located and contain standard provisions protecting the rights of that would be satisfactory to a releasing prudent lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such releases in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of LeasesMortgages, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)2.5, no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release of the any Lien of the any Mortgage on any of the Mortgaged PropertyIndividual Properties.
Appears in 2 contracts
Samples: Loan Agreement (Host Marriott Corp/), Loan Agreement (Host Marriott L P)
Total Defeasance. (i) Provided no Event of Default shall have occurred and remain uncured and provided that Floating Rate Component is being simultaneously prepaid in full in accordance with the terms and conditions of this Agreement (or has been prepaid in full in accordance with the terms and conditions of this Agreement), Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Release Date to voluntarily defease the entire aggregate amount of the Fixed Rate Component and obtain a release of the Lien lien of the Mortgage encumbering Pledge Agreement by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(iA) Borrower shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days notice specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(iiB) Unless otherwise agreed to in writing by Lender, Borrower shall pay to Lender (A1) all payments of principal and interest due and payable on the Fixed Rate Component to and including the end of the Interest Accrual Period related to the Total Defeasance Date (provided, that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan Fixed Rate Component to and including the Defeasance Date and end of the Interest Accrual Period related to the next occurring Monthly Payment Date); (B2) all other sums, then if any, due and payable under the Note, this Loan Agreement, the Mortgage Pledge Agreement and the other Loan Documents; (3) all escrow, closing, recording, legal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Pledge Agreement on the applicable Collateral, the review of the proposed Defeasance Collateral and the preparation of the Security Agreement, the Defeasance Collateral Account Agreement and related documentation; and (4) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the portion of the Note related to the Fixed Rate Note or the Total Defeasance Event;
(iiiC) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d2.12(c) hereof;
(ivD) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(vE) Borrower shall deliver to Lender (1) an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary and other reasonably satisfactory qualifications, assumptions and exceptions opining, among other things, that (wI) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, ; (xII) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, ; and (zIII) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
; (vi2) If and to the extent required by the Rating Agencies, a non-consolidation opinion REMIC Opinion with respect to the Total Defeasance Event; and (3) a New Non-Consolidation Opinion with respect to Successor Borrower;
(viiF) If a Securitization has occurred, Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiiG) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.12 have been satisfied;
(ixH) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xI) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xiJ) Mortgage Borrower and Mezzanine A Borrower shall pay all costs have defeased the fixed rate portion of the Mortgage Loan and expenses Mezzanine A Loan in full and paid down the floating rate portion of Lender incurred the Mortgage Loan and Mezzanine A Loan in connection full, in each case, in accordance with the defeasance, including Lender’s reasonable attorneys’ fees Mortgage Loan Agreement and expenses the Mezzanine A Loan Agreement.
(ii) If the Floating Rate Component is being simultaneously prepaid in full in accordance with the terms and Rating Agency fees conditions of this Agreement (or has been prepaid in full in accordance with the terms and expenses. If a Total Defeasance occurs conditions of this Agreement) and all Borrower has elected to defease the entire aggregate amount of the Fixed Rate Component and the requirements of this Section 2.7 2.12 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any the Collateral shall be released from the lien of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases Pledge Agreement and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the Loan. In connection with any such the release of the Lienlien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Total Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), a release of Lien lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the applicable jurisdiction in which the Mortgaged Property is located and contain that contains standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay , together with an Officer’s Certificate certifying that such documentation (1) is in compliance with all costsLegal Requirements, taxes and expenses associated (2) will effect such release in accordance with the release terms of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ feesthis Agreement. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)Article 2, no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged PropertyPledge Agreement.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Total Defeasance. (i) Provided no Event of Default shall have occurred and remain uncured and provided that Floating Rate Component is being simultaneously prepaid in full in accordance with the terms and conditions of this Agreement (or has been prepaid in full in accordance with the terms and conditions of this Agreement), Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Release Date to voluntarily defease the entire aggregate amount of the Fixed Rate Component and obtain a release of the Lien lien of the Mortgage encumbering Pledge Agreement by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(iA) Borrower shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days notice specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(iiB) Unless otherwise agreed to in writing by Lender, Borrower shall pay to Lender (A1) all payments of principal and interest due and payable on the Fixed Rate Component to and including the end of the Interest Accrual Period related to the Total Defeasance Date (provided, that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan Fixed Rate Component to and including the Defeasance Date and end of the Interest Accrual Period related to the next occurring Monthly Payment Date); (B2) all other sums, then if any, due and payable under the Note, this Loan Agreement, the Mortgage Pledge Agreement and the other Loan Documents; (3) all escrow, closing, recording, legal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Pledge Agreement on the applicable Collateral, the review of the proposed Defeasance Collateral and the preparation of the Security Agreement, the Defeasance Collateral Account Agreement and related documentation; and (4) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the portion of the Note related to the Fixed Rate Note or the Total Defeasance Event;
(iiiC) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d2.12(c) hereof;
(ivD) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(vE) Borrower shall deliver to Lender (1) an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary and other reasonably satisfactory qualifications, assumptions and exceptions opining, among other things, that (wI) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, ; (xII) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, ; and (zIII) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
; (vi2) If and to the extent required by the Rating Agencies, a non-consolidation opinion REMIC Opinion with respect to the Total Defeasance Event; and (3) a New Non-Consolidation Opinion with respect to Successor Borrower;
(viiF) If a Securitization has occurred, Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiiG) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.12 have been satisfied;
(ixH) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xI) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xiJ) Mortgage Borrower shall pay all costs have defeased the fixed rate portion of the Mortgage Loan in full and expenses paid down the floating rate portion of Lender incurred the Mortgage Loan in connection full, in each case, in accordance with the defeasance, including Lender’s reasonable attorneys’ fees Mortgage Loan Agreement.
(ii) If the Floating Rate Component is being simultaneously prepaid in full in accordance with the terms and expenses conditions of this Agreement (or has been prepaid in full in accordance with the terms and Rating Agency fees conditions of this Agreement) and expenses. If a Total Defeasance occurs Borrower has elected to defease the entire aggregate amount of the Fixed Rate Component and all of the requirements of this Section 2.7 2.12 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any the Collateral shall be released from the lien of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases Pledge Agreement and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the Loan. In connection with any such the release of the Lienlien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Total Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), a release of Lien lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the applicable jurisdiction in which the Mortgaged Property is located and contain that contains standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay , together with an Officer’s Certificate certifying that such documentation (1) is in compliance with all costsLegal Requirements, taxes and expenses associated (2) will effect such release in accordance with the release terms of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ feesthis Agreement. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)Article 2, no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged PropertyPledge Agreement.
Appears in 2 contracts
Samples: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Total Defeasance. Borrower shall have the right at any time after the First Open Defeasance Date and prior to the First Open Prepayment Date to obtain a release of the Lien of the Mortgage encumbering the Mortgaged Property (a “"Total Defeasance”") upon satisfaction of the following conditions:
(i) Borrower shall provide Lender at least thirty (30) days’ ' prior written notice (or such shorter period of time if permitted by Lender in its sole discretionLender) specifying a date (the “"Defeasance Date”") on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total Defeasance;
(ii) Borrower shall pay to Lender (A) all payments of interest due on the Loan to and including the Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary in commercial lending transactions and subject only to normal qualifications, assumptions and exceptions opiningopining to any matter as then required by the Rating Agencies in connection with similar transactions and including, among other things, that (w) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, and (x) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “"real estate mortgage investment conduit” " within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (z) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(vii) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstanding;
(viii) Borrower shall deliver an officer’s 's certificate certifying that the requirements set forth in this Section 2.7 have been satisfied;
(ix) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request, provided the same do not materially increase Borrower's obligations or decrease Borrower's rights hereunder; and
(xi) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasance, including Lender’s 's reasonable attorneys’ ' fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property Property, all Account Collateral and all other Collateral from the Lien of the Mortgage and the Assignment of Leases Profits and Leases, and to terminate the Local Collection Account Agreements, the Collection Account Agreement and all Direction Letters, and cause all Account Collateral held by or on behalf of Lender to be released to Borrower, and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretionLender), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of Leases, including Lender’s 's reasonable attorneys’ ' fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below), no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Property.
Appears in 1 contract
Total Defeasance. (a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Permitted Prepayment Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(i) Borrower shall provide Lender at least thirty not less than ten (3010) daysBusiness Days’ prior written notice (or such shorter period of time if as may be permitted by Lender in its sole discretion) specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur. Borrower’s notice of defeasance shall create an obligation of Borrower to defease the entire Loan as set forth therein, but may be rescinded by a written notice to Lender prior to the applicable Total Defeasance Date. Borrower agrees to indemnify Lender and to hold Lender harmless from and against any and all costs and expenses Lender sustains or incurs as a consequence of any such rescission of a notice of defeasance;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due on the Loan to and including the Total Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.5.3 and Sections 2.7(c) and (d) 2.5.4 hereof;
(iv) Borrower shall execute and deliver to Lender a Defeasance Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, (A) that (w) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) that, if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the a Total Defeasance Event pursuant to this Section 2.7(a2.5 (assuming a “startup day” (within the meaning of Section 860G(a)(9) of the Code) that is the earlier of the actual start-up date and the date specified in clause (a) of the definition of “Release Date” contained herein), and (yC) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (z) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viivi) If a Securitization has occurred, Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiivii) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.5 have been satisfied;
(ixviii) Borrower shall deliver a certificate of a “big four” or other nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(ix) Intentionally omitted;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xi) Borrower shall pay all reasonable out-of-pocket costs and expenses of Lender incurred in connection with the defeasanceTotal Defeasance Event, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency Agencies’ fees and expenses. .
(b) If a Total Defeasance occurs Borrower has elected to defease the entire Note and all of the requirements of this Section 2.7 2.5 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender Property shall execute any and all documents required to release the Mortgaged Property be released from the Lien lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, Collateral pledged pursuant to the Defeasance Security Agreement, Agreement shall be the sole source of collateral securing the LoanNote. In connection with any such the release of the Lien, Borrower shall submit to LenderLender for its review, not less than thirty fifteen (3015) days prior to the Defeasance Date (or such shorter period of time as may be permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution to be executed by Lender. Such release shall be in a form appropriate in the jurisdiction applicable jurisdiction(s) in which the Mortgaged Property is located and contain that contains standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender that a reasonably requires prudent lender originating commercial loans for securitization similar to the Loan would require to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien lien of the Mortgage and the Assignment of LeasesMortgage, including Lender’s reasonable attorneys’ fees. Except as set forth in Section 2.4 or this Section 2.7(a)(or in Section 2.7(b) below)2.5, no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged Property.
(c) If Borrower has elected to defease the entire Note and the requirements of this Section 2.5 have been satisfied, in lieu of the release of the Property in accordance with Section 2.5.1(b), upon Borrower’s written request not less than fifteen (15) days prior to the date of the proposed assignment (or such shorter period of time as may be permitted by Lender in its sole discretion), Lender shall (i) assign, or sever into two (2) or more separate loans and assign, the Mortgages and the other Loan Documents to any Person designated by Borrower, which assignment and severance documents shall be in recordable form, (ii) deliver to or as directed by Borrower the original executed Note and all originally executed other notes which may have been consolidated, amended and/or restated in connection with the execution of the Note or, with respect to any note where the original has been lost, destroyed or mutilated, a lost note affidavit for the benefit of the assignee lender and the title insurance company insuring the Mortgages, as assigned, in form sufficient to permit such title insurance company to insure the lien of the Mortgages as assigned to and held by the assignee without exception for any matter relating to the lost, destroyed or mutilated note; provided that in no event shall Lender be required to deliver any indemnity with respect thereto, (iii) execute and deliver an allonge with respect to the Note and any other note(s) described in the clause (ii) above, (iv) deliver the original recorded copies of the Mortgages in Lender’s possession or, at Borrower’s sole cost and expense, certified copies of record, and (v) execute and deliver such other instruments of conveyance, assignment, termination, severance and release (including appropriate UCC statements) in recordable form as may reasonably be requested by Borrower to evidence such assignment and/or severance, provided, in each case, without covenant, recourse, representation (other than representations that such assignment has been duly authorized and that Lender has not otherwise assigned or encumbered the Mortgages or the other Loan Documents except as expressly contemplated therein) or warranty by Lender and notwithstanding anything to the contrary contained herein, pursuant to instruments or other documents in form and substance reasonably satisfactory to Lender. Concurrently with the delivery of the Total Defeasance Collateral to Lender, and whether or not Borrower shall request a release or an assignment as set forth in this Section 2.5.1, Lender shall deliver to Borrower (1) a payoff letter in customary form, (2) all original insurance policies relating to the Property held by or on behalf of Lender, (3) any amounts held in escrow or in any reserve account pursuant to the Loan Documents or otherwise, (4) any other collateral that may have been delivered to Lender in connection with the Loan, and (5) a termination (subject to customary “clawback” provisions) of any guaranties delivered to Lender in connection with the Loan (except to the extent of any obligations thereunder that are expressly intended to survive pursuant to the terms thereof), duly executed by Lender, in each case with respect to clause (1) or (5), in form and substance reasonably satisfactory to Lender. In connection with any transaction contemplated by this Section 2.5.1(c), Borrower shall submit to Lender for its review, not less than fifteen (15) days prior to the Defeasance Date (or such shorter period of time as may be permitted by Lender in its sole discretion), all instruments and documents to be executed by Lender (other than a payoff letter under clause (1) above). All reasonable out-of-pocket costs and expenses incurred by Lender pursuant to this Section 2.5.1(c) shall be paid by Borrower (other than any costs and expenses incurred by Lender in connection with the preparation and delivery of a lost note affidavit in accordance with clause (ii) above or a payoff letter as contemplated by clause (I) above and provided that in no event shall Borrower be required to pay any fee or premium to the Lender or the Servicer in connection herewith).
Appears in 1 contract
Total Defeasance. Borrower (a) Provided no Event of Default shall have occurred and remain uncured, Borrowers shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Permitted Prepayment Date Date, to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering all Individual Properties by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(i) Borrower Borrowers shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(ii) Borrower Borrowers shall pay to Lender (A) all payments of principal and interest due on the Loan to and including the Total Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower Borrowers shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.5.4 and Sections 2.7(c) and (d) 2.5.5 hereof;
(iv) Borrower Borrowers shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower Borrowers shall deliver to Lender an opinion of counsel for Borrower Borrowers that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the a Total Defeasance Event pursuant to this Section 2.7(a)2.5.1, (yC) a the Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, (zD) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
law and (viE) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viivi) Borrower Borrowers shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiivii) Borrower Borrowers shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.5.1 have been satisfied;
(ixviii) Borrower Borrowers shall deliver a certificate of a “big four” or other nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xix) Borrower Borrowers shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and;
(xix) Borrower Borrowers shall pay all costs and expenses of Lender incurred in connection with the defeasanceTotal Defeasance Event, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. ;
(xi) Intentionally Deleted;
(xii) If a Total Defeasance occurs and all of the requirements Other Borrowers have not elected to voluntarily defease the entire amount of this Section 2.7 all of the Other Loans and obtain a release of the lien of the Other Mortgages encumbering all the Other Properties, or the Other Borrowers have been satisfied, including those set forth in Section 2.7(e) below, and provided no not satisfied all of the conditions for a “Event of DefaultTotal Defeasance Event” (as defined in any of the Crossed Other Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or 2.5.1 of the Other Loan Agreements, then Borrowers shall cause the Other Borrowers to deposit with the Other Lenders the Additional Partial Defeasance Collateral into the “Defeasance Collateral Account” (as defined in the Other Loan Agreements) and shall cause the Other Borrowers to satisfy the conditions set forth in Section 2.7(b) below), no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Property.2.5.3
Appears in 1 contract
Samples: Loan Agreement (Wells Real Estate Investment Trust Inc)
Total Defeasance. (a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Date and prior to the First Open Prepayment Release Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total Defeasance”) upon "TOTAL DEFEASANCE EVENT"), subject to the satisfaction of the following conditionsconditions precedent:
(i) Borrower shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date (the “Defeasance Date”"TOTAL DEFEASANCE DATE") on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(ii) Borrower shall pay to Lender (A) all payments of interest due on the Loan to and including the Total Defeasance Date (including, without limitation, short-term interest, if any) and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.5.3 and Sections 2.7(c) and (d) 2.5.4 hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary standard and commercially reasonable in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “"real estate mortgage investment conduit” " within the meaning of Section 860D of the Code as a result of the a Total Defeasance Event pursuant to this Section 2.7(a)2.5, (yC) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code that Borrower has legally and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (z) delivery of validly transferred and assigned the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If and to the extent required by the Rating Agencies, Successor Borrower and (D) a non-consolidation opinion with respect to the Successor Borrower;
(viivi) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiivii) Borrower shall deliver an officer’s certificate Officer's Certificate certifying that the requirements set forth in this Section 2.7 2.5 have been satisfied;
(ixviii) Borrower shall deliver a certificate of a "big four" or other nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Total Defeasance Payments;
(xix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xix) Borrower shall pay all costs and expenses of Lender actually incurred in connection with the defeasanceTotal Defeasance Event, including Lender’s 's reasonable attorneys’ ' fees and expenses and Rating Agency fees and expenses. If Simultaneously with the notice described in subparagraph (a)(i) above, Borrower shall deliver to Lender an amount reasonably determined by Lender to be sufficient to pay such costs and expenses, which amount may be applied by Lender toward payment of such costs and expenses if a proposed Total Defeasance occurs Event does not occur, provided that if such amount is insufficient to pay such costs and all of expenses, Borrower shall remain obligated to pay any deficiency.
(b) If Borrower has elected to defease the Note and the requirements of this Section 2.7 2.5.1 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender Property shall execute any and all documents required to release the Mortgaged Property be released from the Lien lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the LoanNote. In connection with any such the release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Total Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and shall contain standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer's Certificate reasonably acceptable to Lender certifying that such documentation (i) is in material compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement. Borrower shall pay all reasonable costs, taxes and expenses associated with the release of the Lien lien of the Mortgage and the Assignment of LeasesMortgage, including Lender’s 's reasonable attorneys’ ' fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)2.5.1, no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged Property. The foregoing release shall be effective upon the Total Defeasance Date but Lender agrees to provide written evidence of such release to Borrower promptly following Borrower's request therefor.
Appears in 1 contract
Total Defeasance. (a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Maturity Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering by providing Lender with the Mortgaged Property Defeasance Collateral (hereinafter, a “Total Defeasance”) upon "Defeasance Event"), subject to the satisfaction of the following conditionsconditions precedent:
(i) Borrower shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date (the “"Defeasance Date”") on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due on the Loan to and including the Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.5.2 and Sections 2.7(c) and (d) 2.5.3 hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “"real estate mortgage investment conduit” " within the meaning of Section 860D of the Code as a result of the Total a Defeasance Event pursuant to this Section 2.7(a)2.5, (yC) a Total the Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, (zD) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
law and (viE) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower, subject to customary qualifications, assumptions and exceptions, including the application of equitable principles, whether such enforcement is sought by proceedings in equity or at law;
(vi) Borrower shall deliver to Lender a Rating Agency Confirmation as to the Defeasance Event;
(vii) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstanding;
(viii) Borrower shall deliver an officer’s certificate Officer's Certificate certifying that the requirements set forth in this Section 2.7 2.5 have been satisfied;
(ixviii) Borrower shall deliver a certificate of a "big four" or other nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xix) Borrower shall pay all out of pocket costs and expenses of Lender incurred in connection with the defeasanceDefeasance Event, including Lender’s 's reasonable attorneys’ ' fees and expenses and Rating Agency fees and expenses. .
(b) If a Total Defeasance occurs Borrower has elected to defease the entire Note and all of the requirements of this Section 2.7 2.5 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender Property shall execute any and all documents required to release the Mortgaged Property be released from the Lien lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the LoanNote. In connection with any such the release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lenderthat is reasonably acceptable to Lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer's Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien lien of the Mortgage and the Assignment of LeasesMortgage, including Lender’s 's reasonable attorneys’ ' fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)Agreement, no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage and this Agreement on the Mortgaged Property.
Appears in 1 contract
Samples: Loan Agreement (Corporate Property Associates 16 Global Inc)
Total Defeasance. (a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Prepayment Lockout Expiration Date and prior to the First Open Prepayment Maturity Date to obtain a release of the Lien Liens of the Mortgage Mortgages encumbering all of the Mortgaged Property Collateral Properties (a “"Total Defeasance”") upon satisfaction of the following conditions:
(i) Borrower shall provide Lender at least thirty (30) days’ days prior written notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date Payment Date (the “"Defeasance Date”") on by which Borrower shall have satisfied the conditions in this Section 2.7(a) 2.4.1 and on which it shall effect the Total Defeasancedefeasance;
(ii) Borrower shall pay to Lender (A) all payments of accrued and unpaid interest due on the Loan principal balance of the Note to and including the Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage Mortgages and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.4.3 and Sections 2.7(c) and (d) 2.4.4 hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender Lender
(1) an opinion of counsel for Borrower that is customary in commercial lending transactions and subject only reasonably satisfactory to normal qualifications, assumptions and exceptions a prudent lender opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, Collateral and (xB) if a Securitization Secondary Market Transaction has occurred, the REMIC Trust formed pursuant to such Securitization Secondary Market Transaction will not fail to maintain its status as a “"real estate mortgage investment conduit” " within the meaning of Section 860D of the Code as a result of the Total Defeasance defeasance pursuant to this Section 2.7(a)2.4.1, and (y2) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (z) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viivi) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Comfort Letter with respect to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingdefeasance;
(viiivii) Borrower shall deliver an officer’s certificate Officer's Certificate certifying that the requirements set forth in this Section 2.7 2.4.1
(a) have been satisfied;
(ixviii) Borrower shall deliver a certificate of a nationally recognized Borrower's independent certified public accounting firm reasonably acceptable to Lender accountant certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xix) Borrower shall pay all reasonable costs and expenses of Lender incurred in connection with the defeasance, including Lender’s 's reasonable attorneys’ ' fees and expenses and Applicable Rating Agency fees and expenses. .
(b) If a Total Defeasance occurs Borrower has elected to defease the entire Note and all of the requirements of this Section 2.7 2.4.1 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any the Collateral Properties shall be released from the Liens of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage Mortgages and the Assignment of Leases other Loan Documents and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the LoanNote. In connection with any such the release of the LienLiens, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion)Date, a release releases of Lien Liens (and related Loan Documents) for execution by Lender. Such release releases shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is respective Collateral Properties are located and contain standard provisions protecting the rights of would be reasonably satisfactory to a releasing lenderprudent lender originating a similar loan for its portfolio. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such releasereleases, together with an Officer's Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such releases in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release releases of the Lien Liens of the Mortgage Mortgages and the Assignment of Leasesother Loan Documents, including Lender’s 's reasonable attorneys’ ' fees. Except as set forth in this Section 2.7(a)(or 2.4.1, in Section 2.7(b) below)2.4.2 or otherwise in this Agreement, no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release releases of the Lien Liens of the Mortgage Mortgages on the Mortgaged PropertyCollateral Properties. Notwithstanding anything contained herein to the contrary, Borrower may prepay the Loan in accordance with Section 3.2 at any time within six (6) months of the Maturity Date without any obligation to satisfy any of the conditions of Section 2.4.1 with respect to a Total Defeasance and/or Section 2.4.2 with respect to a Partial Defeasance.
Appears in 1 contract
Total Defeasance. (a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Permitted Prepayment Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(i) Borrower shall provide Lender at least thirty not less than fifteen (3015) daysBusiness Days’ prior written notice (or such shorter period of time if as may be permitted by Lender in its sole discretion) specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur. Borrower’s notice of defeasance shall create an obligation of Borrower to defease the entire Loan as set forth therein, but may be rescinded by a written notice to Lender prior to the applicable Total Defeasance Date. Borrower agrees to indemnify Lender and to hold Lender harmless from and against any and all costs and expenses Lender sustains or incurs as a consequence of any such rescission of a notice of defeasance;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due on the Loan to and including the Total Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.5.3 and Sections 2.7(c) and (d) 2.5.4 hereof;
(iv) Borrower shall execute and deliver to Lender a Defeasance Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, (A) that (w) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) that, if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the a Total Defeasance Event pursuant to this Section 2.7(a2.5 (assuming a “startup day” (within the meaning of Section 860G(a)(9) of the Code) that is the earlier of the actual start-up date and the date specified in clause (a) of the definition of “Release Date” contained herein), and (yC) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (z) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viivi) If a Securitization has occurred, Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiivii) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.5 have been satisfied;
(ixviii) Borrower shall deliver a certificate of a “big four” or other nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xix) Borrower shall pay all reasonable out-of-pocket costs and expenses of Lender incurred in connection with the defeasanceTotal Defeasance Event, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency Agencies’ fees and expenses. .
(b) If a Total Defeasance occurs Borrower has elected to defease the entire Note and all of the requirements of this Section 2.7 2.5 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender Property shall execute any and all documents required to release the Mortgaged Property be released from the Lien lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, Collateral pledged pursuant to the Defeasance Security Agreement, Agreement shall be the sole source of collateral securing the LoanNote. In connection with any such the release of the Lien, Borrower shall submit to LenderLender for its review, not less than thirty fifteen (3015) days prior to the Defeasance Date (or such shorter period of time as may be permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution to be executed by Lender. Such release shall be in a form appropriate in the jurisdiction applicable jurisdiction(s) in which the Mortgaged Property is located and contain that contains standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender that a reasonably requires prudent lender originating commercial loans for securitization similar to the Loan would require to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien lien of the Mortgage and the Assignment of LeasesMortgage, including Lender’s reasonable attorneys’ fees. Except as set forth in Section 2.4 or this Section 2.7(a)(or in Section 2.7(b) below)2.5, no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged Property.
(c) If Borrower has elected to defease the entire Note and the requirements of this Section 2.5 have been satisfied, in lieu of the release of the Property in accordance with Section 2.5.1(b), upon Borrower’s written request not less than fifteen (15) days prior to the date of the proposed assignment (or such shorter period of time as may be permitted by Lender in its sole discretion), Lender shall (i) assign, or sever into two (2) or more separate loans and assign, the Mortgages and the other Loan Documents to any Person designated by Borrower, which assignment and severance documents shall be in recordable form, (ii) deliver to or as directed by Borrower the original executed Note and all originally executed other notes which may have been consolidated, amended and/or restated in connection with the execution of the Note or, with respect to any note where the original has been lost, destroyed or mutilated, a lost note affidavit for the benefit of the assignee lender and the title insurance company insuring the Mortgages, as assigned, in form sufficient to permit such title insurance company to insure the lien of the Mortgages as assigned to and held by the assignee without exception for any matter relating to the lost, destroyed or mutilated note; provided that in no event shall Lender be required to deliver any indemnity with respect thereto, (iii) execute and deliver an allonge with respect to the Note and any other note(s) described in the clause (ii) above, (iv) deliver the original recorded copies of the Mortgages in Lender’s possession or, at Borrower’s sole cost and expense, certified copies of record, and (v) execute and deliver such other instruments of conveyance, assignment, termination, severance and release (including appropriate UCC statements) in recordable form as may reasonably be requested by Borrower to evidence such assignment and/or severance, provided, in each case, without covenant, recourse, representation (other than representations that such assignment has been duly authorized and that Lender has not otherwise assigned or encumbered the Mortgages or the other Loan Documents except as expressly contemplated therein) or warranty by Lender and notwithstanding anything to the contrary contained herein, pursuant to instruments or other documents in form and substance reasonably satisfactory to Lender. Concurrently with the delivery of the Total Defeasance Collateral to Lender, and whether or not Borrower shall request a release or an assignment as set forth in this Section 2.5.1, Lender shall deliver to Borrower (1) a payoff letter in customary form, (2) all original insurance policies relating to the Property held by or on behalf of Lender, (3) any amounts held in escrow or in any reserve account pursuant to the Loan Documents or otherwise, (4) any other collateral that may have been delivered to Lender in connection with the Loan, and (5) a termination (subject to customary “clawback” provisions) of any guaranties delivered to Lender in connection with the Loan (except to the extent of any obligations thereunder that are expressly intended to survive pursuant to the terms thereof), duly executed by Lender, in each case with respect to clause (1) or (5), in form and substance reasonably satisfactory to Lender. In connection with any transaction contemplated by this Section 2.5.1(c), Borrower shall submit to Lender for its review, not less than fifteen (15) days prior to the Defeasance Date (or such shorter period of time as may be permitted by Lender in its sole discretion), all instruments and documents to be executed by Lender (other than a payoff letter under clause (1) above). All reasonable out-of-pocket costs and expenses incurred by Lender pursuant to this Section 2.5.1(c) shall be paid by Borrower (other than any costs and expenses incurred by Lender in connection with the preparation and delivery of a lost note affidavit in accordance with clause (ii) above or a payoff letter as contemplated by clause (1) above and provided that in no event shall Borrower be required to pay any fee or premium to the Lender or the Servicer in connection herewith).
Appears in 1 contract
Total Defeasance. (a) Provided no Event of Default shall have occurred and be continuing, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Effective Maturity Date to obtain a release of the Lien of the Mortgage Mortgages encumbering the Mortgaged Property all Individual Properties (a “Total Defeasance”"TOTAL DEFEASANCE") upon satisfaction of the following conditions:
(i) Borrower shall provide Lender at least thirty (30) days’ days prior written notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date (the “Defeasance Date”"DEFEASANCE DATE") on which Borrower shall have satisfied the conditions in this Section 2.7(a) 2.5.1 and on which it shall effect the Total Defeasancedefeasance;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due on the Loan to and including the Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage Mortgages and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.5.3 and Sections 2.7(c) and (d) 2.5.4 hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal qualifications, assumptions and exceptions opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “"real estate mortgage investment conduit” " within the meaning of Section 860D of the Code as a result of the Total Defeasance defeasance pursuant to this Section 2.7(a)2.5.1, (yC) a Total Defeasance defeasance pursuant to this Section 2.7 2.5.1 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, (zD) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
law and (viE) If if and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viivi) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies to the effect that the release of the Mortgaged Property Individual Properties from the Lien of the Mortgage as contemplated by this Section 2.7(a) 2.5.1 and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstanding;
(viiivii) Borrower shall deliver an officer’s certificate Officer's Certificate certifying that the requirements set forth in this Section 2.7 have been satisfied;
(ix) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xi) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below), no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Property.2.5.1
Appears in 1 contract
Samples: Loan Agreement (Hilton Hotels Corp)
Total Defeasance. (i) Provided no Event of Default shall have occurred and remain incurred, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Date (as defined below) to obtain a release of the Lien lien of the Mortgage Security Instruments encumbering the Mortgaged Property (a “Total Defeasance”) all Individual Properties upon satisfaction of the following conditions:
(iA) Borrower shall provide Lender at least thirty sixty (3060) days’ days prior written notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date Payment Date (the “"Defeasance Date”") on which Borrower shall have satisfied the conditions in this Section 2.7(aArticle VI(b) and on which it shall effect affect the Total Defeasancedefeasance;
(iiB) Borrower shall pay to Lender (A) all payments of principal and interest due on the Loan this Note to and including the Defeasance Date and (B) all other sums, then due under the this Note, this Loan Agreement, the Mortgage Security Instruments and the other Loan Other Security Documents;
(iiiC) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(cArticle VI(d) and (de) hereof;
(ivD) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(vE) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary in commercial lending transactions and subject only Borxxxxx xxat would be satisfactory to normal qualifications, assumptions and exceptions a prudent lender opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) if a Securitization has occurredSecurities have been issued, the REMIC Trust formed pursuant to such Securitization the related securitization will not fail to maintain its status as a “"real estate mortgage investment conduit” " within the meaning of Section 860D of the IRS Code as a result of the Total Defeasance defeasance pursuant to this Section 2.7(aArticle VI(b), (yC) a Total Defeasance defeasance pursuant to this Section 2.7 Article VI(b) will not result in a deemed exchange for purposes of the IRS Code and will not adversely affect effect the status of the Loan this Note as indebtedness for federal income tax purposes, (zD) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
law and (viE) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viiF) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies to the effect that the release of the Mortgaged Property Individual Properties from the Lien lien of the Mortgage Security Instruments as contemplated by this Section 2.7(aArticle VI(b) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates Securities issued in connection with the Securitization securitization which are then outstanding;
(viiiG) Borrower shall deliver an officer’s 's certificate certifying that the requirements set forth in this Section 2.7 Article VI(b) have been satisfied;
(ixH) Borrower shall deliver a certificate of a nationally recognized Borrower's independent certified public accounting firm reasonably acceptable to Lender accountant certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xI) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xiJ) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasance, including Lender’s 's reasonable attorneys’ ' fees and expenses and Rating Agency fees Agxxxx xees and expenses. .
(ii) If a Total Defeasance occurs Borrower has elected to defease this entire Note and all of the requirements of this Section 2.7 requiremenxx xx xxis Article VI have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any all of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender Individual Properties shall execute any and all documents required to release the Mortgaged Property be released from the Lien Liens of the Mortgage and the Assignment of Leases their respective Security Instruments and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loanthis Note. In connection with any such the release of the Lienliens, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien lien (and related Loan Othex Xxxxrity Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction each jurisdixxxxx in which the Mortgaged an Individual Property is located and contain standard provisions protecting the rights of that would be satisfactory to a releasing prudent lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an officer's certificate certifying that such documentation (i) is in compliance with all legal requirements, and (ii) will effect such releases in accordance with the terms of this Note. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien lien of the Mortgage and the Assignment of LeasesSecurity Instruments, including Lender’s 's reasonable attorneys’ ' fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)thxx Xxxicle VI, no repayment, prepayment or defeasance of all or any portion of the Loan this Note shall cause, give rise to a right to require, or otherwise result in, the release of the Lien any lien of any Security Instruments on any of the Mortgage on the Mortgaged PropertyIndividual Properties.
Appears in 1 contract
Samples: Promissory Note (Carey Institutional Properties Inc /Md/)
Total Defeasance. (i) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Maturity Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering Security Instrument by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “"Total Defeasance”) upon Defeasance Event"), subject to the satisfaction of the following conditionsconditions precedent:
(i) Borrower shall provide Lender at least not less than thirty (30) days’ prior written ' notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days' notice specifying a date (the “"Total Defeasance Date”") on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(ii) Unless otherwise agreed to in writing by Lender, Borrower shall pay to Lender (A1) all payments of principal and interest due and payable on the Loan to and including the Total Defeasance Date (provided, that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan to and including the Defeasance Date and next occurring Monthly Payment Date); (B2) all other sums, then if any, due and payable under the Note, this Loan Agreement, the Mortgage Security Instrument and the other Loan DocumentsDocuments through and including the Total Defeasance Date (or, if the Total Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (3) all escrow, closing, recording, legal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Security Instrument on the Property, the review of the proposed Defeasance Collateral and the preparation of the Security Agreement, the Defeasance Collateral Account Agreement and related documentation; and (4) any revenue, documentary stamp, 41458-110/JANAF Shopping Yard (VA) intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note or the Total Defeasance Event;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d2.8(c) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender Lender
(1) an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (wI) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, ; (xII) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the IRS Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, ; and (zIII) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law; (2) a REMIC Opinion with respect to the Total Defeasance Event; and (3) a New Non-Consolidation Opinion with respect to Successor Borrower;
(vi) If and Borrower shall deliver to Lender a Rating Agency Confirmation as to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor BorrowerTotal Defeasance Event;
(vii) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstanding;
(viii) Borrower shall deliver an officer’s certificate Officer's Certificate certifying that the requirements set forth in this Section 2.7 2.8 have been satisfied;
(ixviii) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;; and
(xix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and.
(xiii) If Borrower shall pay all costs has elected to defease the entire Loan and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 2.8 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any the Property shall be released from the lien of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases Security Instrument and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the Loan. In connection with any such the release of the Lienlien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Total Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), a release of Lien lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain that contains standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires LOAN AGREEMENT – Page 32 41458-110/JANAF Shopping Yard (VA) to be delivered by Borrower in connection with such release. Borrower shall pay , together with an Officer's Certificate certifying that such documentation (1) is in compliance with all costsLegal Requirements, taxes and expenses associated (2) will effect such release in accordance with the release terms of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ feesthis Agreement. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)Article 2, no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged PropertySecurity Instrument.
Appears in 1 contract
Samples: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Total Defeasance. (a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Date and prior to the First Open Prepayment Release Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(i) Borrower shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(ii) Borrower shall pay to Lender (A) all payments of interest due on the Loan to and including the Total Defeasance Date (including, without limitation, short-term interest, if any) and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.5.3 and Sections 2.7(c) and (d) 2.5.4 hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary standard and commercially reasonable in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the a Total Defeasance Event pursuant to this Section 2.7(a)2.5, (yC) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code that Borrower has legally and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (z) delivery of validly transferred and assigned the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If and to the extent required by the Rating Agencies, Successor Borrower and (D) a non-consolidation opinion with respect to the Successor Borrower;
(viivi) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiivii) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.5 have been satisfied;
(ixviii) Borrower shall deliver a certificate of a “big four” or other nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Total Defeasance Payments;
(xix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xix) Borrower shall pay all costs and expenses of Lender actually incurred in connection with the defeasanceTotal Defeasance Event, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If Simultaneously with the notice described in subparagraph (a)(i) above, Borrower shall deliver to Lender an amount reasonably determined by Lender to be sufficient to pay such costs and expenses, which amount may be applied by Lender toward payment of such costs and expenses if a proposed Total Defeasance occurs Event does not occur, provided that if such amount is insufficient to pay such costs and all of expenses, Borrower shall remain obligated to pay any deficiency.
(b) If Borrower has elected to defease the Note and the requirements of this Section 2.7 2.5.1 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender Property shall execute any and all documents required to release the Mortgaged Property be released from the Lien lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the LoanNote. In connection with any such the release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Total Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and shall contain standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate reasonably acceptable to Lender certifying that such documentation (i) is in material compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement. Borrower shall pay all reasonable costs, taxes and expenses associated with the release of the Lien lien of the Mortgage and the Assignment of LeasesMortgage, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)2.5.1, no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged Property. The foregoing release shall be effective upon the Total Defeasance Date but Lender agrees to provide written evidence of such release to Borrower promptly following Borrower’s request therefor.
Appears in 1 contract
Total Defeasance. (i) Provided no Event of Default shall have occurred and be continuing, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Maturity Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering Security Instrument by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(iA) Borrower shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than one hundred twenty (120) days notice specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(iiB) Unless otherwise agreed to in writing by Lender, Borrower shall pay to Lender (A1) all payments of principal and interest due and payable on the Loan to and including the Total Defeasance Date (provided, that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan to and including the Defeasance Date and next occurring Monthly Payment Date); (B2) all other sums, then if any, due and payable under the Note, this Loan Agreement, the Mortgage Security Instrument and the other Loan DocumentsDocuments through and including the Total Defeasance Date (or, if the Total Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (3) all escrow, closing, recording, legal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Security Instrument on the Property, the review of the proposed Defeasance Collateral and the preparation of the Security Agreement, the Defeasance Collateral Account Agreement and related documentation; and (4) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note or the Total Defeasance Event;
(iiiC) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d) hereof2.8(c)hereof;
(ivD) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(vE) Borrower shall deliver to Lender (1) an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (wI) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, ; (xII) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the IRS Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, ; and (zIII) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
; (vi2) If and to the extent required by the Rating Agencies, a non-consolidation opinion REMIC Opinion with respect to the Total Defeasance Event; and (3) if requested by Lender, a New Non- Consolidation Opinion with respect to Successor Borrower;
(viiF) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiiG) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.8 have been satisfied;
(ixH) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;; and
(xI) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and.
(xiii) If Borrower shall pay all costs has elected to defease the entire Loan and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 2.8 have been satisfiedsatisfied or waived by Lender in writing, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any the Property shall be released from the lien of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases Security Instrument and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the Loan. In connection with any such the release of the Lienlien, Borrower shall submit to Lender, not less than thirty ten (3010) days prior to the Total Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), a release of Lien lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the each jurisdiction in which the Mortgaged each Individual Property is located and contain that contains standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay , together with an Officer’s Certificate certifying that such documentation (1) is in compliance with all costsLegal Requirements, taxes and expenses associated (2) will effect such release in accordance with the release terms of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ feesthis Agreement. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)Article 2, no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged PropertySecurity Instrument.
Appears in 1 contract
Samples: Loan Agreement (Lightstone Value Plus Real Estate Investment Trust III, Inc.)
Total Defeasance. (a) Provided no Event of Default shall then be continuing, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Lockout Release Date to voluntarily defease the entire Loan and obtain a release of the Lien liens of all of the Mortgage encumbering Security Instruments by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(i) Borrower shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if as permitted by Lender in its sole discretion) specifying a date Payment Date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due on the Loan to and including the Total Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage Security Instruments and the other Loan Documents; and Lender shall provide Borrower with a statement setting forth the amount of such principal, interest and other sums then due;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.4.3 and Sections 2.7(c) and (d) 2.4.4 hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in form and substance reasonably acceptable to Borrower and Lender in respect of the Defeasance Collateral Account and the Total Defeasance CollateralCollateral and such Security Agreement shall be prepared by Lender or Lender’s counsel;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the a Total Defeasance Event pursuant to this Section 2.7(a)2.4 other than as a result of such Total Defeasance Event occurring within two years of the “startup day” (within the meaning of Treasury Regulations Section 1.860G-2(a)(8) or any successor provision) of a REMIC Trust, (yC) a the Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange of the Loan for purposes of Section 1001 of the Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, (zD) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
law and (viE) If and to the extent required by the Rating Agenciesif applicable, a non-consolidation opinion New Insolvency Opinion with respect to the Successor Borrower; provided that, in rendering the opinions described in clauses (B) and (C), counsel may rely upon representations from Borrower regarding (i) the extent to which the Total Defeasance Event is occurring to facilitate the disposition of property or other customary commercial transactions and is not part of an arrangement to collateralize a REMIC Trust with obligations that are not real estate mortgages, (ii) the nature of the substitute collateral, and (iii) the extent to which Lender has incurred, or is expected to incur, any loss, damage, cost, expense, liability, claim or other obligation arising out of or in connection with any of the events described in any of Sections 9.4(i) through (xiii) hereof; provided further that, if a Securitization has occurred, upon Borrower’s written request, Lender shall provide Borrower with written notice, on which Borrower and Borrower’s counsel may rely in connection with the opinion required under this clause (v), specifying the “startup day” (within the meaning of Treasury Regulations Section 1.860G-2(a)(8) or any successor provision) of any REMIC Trust formed pursuant to such Securitization;
(viivi) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiivii) if required by the Rating Agencies, Borrower shall deliver an officer’s certificate certifying that the requirements set forth in this Section 2.7 have been satisfied;
(ix) Borrower shall deliver to Lender a certificate of a “Big Four” or other nationally recognized public accounting firm reasonably acceptable to Lender and the Rating Agencies certifying that the Total Defeasance Collateral will generate monthly amounts (without taking into account any earnings on reinvestment) equal to or greater than the Scheduled Defeasance Payments;
(xviii) Borrower shall deliver to Lender such other certificates, opinions, documents and instruments as Lender may reasonably requestrequest or the Rating Agencies may require, which certificates, documents and instruments Lender or Lender’s counsel shall prepare; and
(xiix) Borrower shall pay all reasonable costs and expenses of Lender incurred in connection with the defeasanceTotal Defeasance Event (regardless of whether such event actually occurs), including including, without limitation, Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If expenses (other than any costs and expenses arising as a result of such Total Defeasance occurs Event occurring within two years of the “startup day” (within the meaning of Treasury Regulations Section 1.860G-2(a)(8) or any successor provision) of any REMIC Trust).
(b) If Borrower has elected to defease the entire Note and all of the requirements of this Section 2.7 2.4.1 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any the Properties shall be released from the liens of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases Security Instruments and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the LoanNote. In connection with any such the release of the Liensuch liens, Lender shall deliver to Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution each Property duly executed by Lender. Such Each such release shall be in a form appropriate in the jurisdiction in which the Mortgaged each such Property is located and shall contain standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all deliver to Lender such other documentation Lender reasonably requires to be delivered required by Borrower in connection with such releaseLender. Borrower shall pay all costs, taxes and expenses state, county and/or municipal fees associated with the release of the Lien liens of the Mortgage and the Assignment of LeasesSecurity Instruments, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or 2.4 and in Section 2.7(b) below)2.5, no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage applicable Security Instrument on the Mortgaged any Property.
Appears in 1 contract
Total Defeasance. Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Lockout Release Date and prior to the First Open Prepayment Period Start Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering Security Instrument by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(i) Borrower shall provide Lender at least not less than thirty (30) days’ prior written notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days’ notice specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is scheduled to occur;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due and payable on the Loan to and including the Total Defeasance Date (provided that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan to and including the Defeasance next occurring Monthly Payment Date and (the “Shortfall Payment”)); (B) all other sums, if any, then due and payable under the Note, this Loan Agreement, the Mortgage Security Instrument and the other Loan Documents;Documents through and including the Total Defeasance Date (or, if the Total Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (C) all escrow, closing, recording, legal, appraisal, Rating Agency and other reasonable and customary third-party fees, costs and expenses actually paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Security Instrument on the Property, the review of the proposed Defeasance Collateral and the preparation of the Security Agreement and related documentation; and (D) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note and/or the Total Defeasance Event.
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d2.8(d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, ; (xB) if a Securitization has occurred, occurred (1) the REMIC Trust formed pursuant to such Securitization and/or any subsequent or prior Securitization of the Loan or any portion thereof or interest therein will each not fail to maintain its their respective status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the IRS Code as a result of the a Total Defeasance Event pursuant to this Section 2.7(a), 2.8 and (y2) a the Total Defeasance pursuant to this Section 2.7 will Event would not result in (I) constitute a deemed exchange for purposes of the Code and will not adversely affect the status “significant modification” of the Loan as indebtedness for federal income tax purposes, within the meaning of Treasury Regulation Section 1.860G-2(b) or (zII) delivery cause the Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the Total Defeasance Collateral IRS Code; and the grant of (C) a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If and to the extent required by the Rating Agencies, a nonNew Non-consolidation opinion Consolidation Opinion with respect to the Successor Borrower;
(viivi) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiivii) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.8(b) have been satisfied;
(ixviii) Borrower shall deliver a certificate of a “big four” or other nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably requestrequest to effectuate the terms of this Section 2.8; and
(xix) Borrower shall pay all reasonable and customary third party costs and expenses of Lender actually incurred in connection with the defeasanceTotal Defeasance Event, including including, without limitation, Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below), no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Property.
Appears in 1 contract
Samples: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Total Defeasance. (i) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Lockout Release Date and prior to the First Open Prepayment Period Start Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering Security Instrument by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(iA) Borrower shall provide Lender at least thirty not less than forty-five (3045) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days notice specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(iiB) Borrower shall pay to Lender (A1) all payments of principal and interest due and payable on the Loan to and including the Total Defeasance Date (provided that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan to and including the Defeasance Date and next occurring Monthly Payment Date); (B2) all other sums, if any, then due and payable under the Note, this Loan Agreement, the Mortgage Security Instrument and the other Loan Documents;Documents through and including the Total Defeasance Date (or, if the Total Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (3) all reasonable escrow, closing, recording, legal, appraisal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Security Instrument on the Property, the review of the proposed Total Defeasance Collateral and the preparation of the Security Agreement and related documentation; and (4) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note and/or the Total Defeasance Event.
(iiiC) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d2.8(c) hereof;
(ivD) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(vE) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (w1) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, ; (x2) if a Securitization has occurred, occurred (a) the REMIC Trust formed pursuant to such Securitization and/or any subsequent or prior Securitization of the Loan or any portion thereof or interest therein will each not fail to maintain its their respective status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the IRS Code as a result of the a Total Defeasance Event pursuant to this Section 2.7(a), 2.8 and (b) the Total Defeasance Event would not (x) constitute a “significant modification” of the Loan within the meaning of Treasury Regulation Section 1.1001-3 or (y) cause the Loan to fail to be a “qualified mortgage” within the meaning of Section 860G(a)(3)(A) of the IRS Code; and (3) the Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the IRS Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, (z) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viiF) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiiG) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.8 have been satisfied;
(ixH) Borrower shall deliver a certificate of a “big four” or other nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;; and
(xI) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and.
(xiii) If Borrower shall pay all costs has elected to defease the Note and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 2.8 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any the Property shall be released from the lien of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases Security Instrument and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the LoanNote. In connection with any such the release of the Lienlien, Borrower shall submit to Lender, not less than thirty fifteen (3015) days Business Days prior to the Total Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), (A) a release of Lien lien (and related Loan Documents) for execution by Lender. Such , which release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and shall contain standard provisions protecting the rights of the releasing lender with respect to payment of the Debt, and (B) a releasing lenderrelease of the Guaranty, except that (1) such release shall only be with respect to matters that solely arise from and after the date of such Total Defeasance Event, and (2) there shall be no release of those continuing obligations which expressly survive pursuant to the terms of the Guaranty, the Environmental Indemnity and Section 11.2 and Articles 12 and 13 hereof. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien lien of the Mortgage and the Assignment of LeasesSecurity Instrument, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)Article 2, no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged PropertySecurity Instrument.
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Total Defeasance. (a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Anticipated Repayment Date to obtain a release of the Lien of the Mortgage Mortgages encumbering the Mortgaged Property (a “Total Defeasance”) all Properties upon satisfaction of the following conditions:
(i) Borrower shall provide Lender at least thirty (30) days’ days prior written notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date Monthly Payment Date (the “Defeasance Date”"DEFEASANCE DATE") on which the Borrower shall have satisfied the conditions in this Section 2.7(a) 2.5.1 and on which it shall effect the Total Defeasancedefeasance;
(ii) Borrower shall pay to Lender (A) all payments of accrued and unpaid interest due on the Loan principal balance of the Note to and including the Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage Mortgages and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.5.3 and Sections 2.7(c) and (d) 2.5.4 hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary satisfactory to Lender in commercial lending transactions and subject only to normal qualifications, assumptions and exceptions its sole discretion opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “"real estate mortgage investment conduit” " within the meaning of Section 860D of the Code as a result of the Total Defeasance defeasance pursuant to this Section 2.7(a)2.5.1, (yC) a Total Defeasance defeasance pursuant to this Section 2.7 2.5.1 will not result in a deemed exchange for purposes of the Code and will not adversely affect effect the status of the Loan Note as indebtedness for federal income tax purposes, (zD) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
law and (viE) If and to the extent if required by the applicable Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viivi) Borrower shall deliver to Lender a confirmation evidence in writing from the applicable Rating Agencies to the effect that the release of the Mortgaged Property Properties from the Lien of the Mortgage as contemplated by this Section 2.7(a) 2.5.1 and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates Securities issued in connection with the Securitization which are then outstanding;
(viiivii) Borrower shall deliver an officer’s certificate Officer's Certificate certifying that the requirements set forth in this Section 2.7 2.5.1
(a) have been satisfied;
(ixviii) Borrower shall deliver a certificate of a nationally recognized Borrower's independent certified public accounting firm reasonably acceptable to Lender accountant certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance PaymentsPayments in the form annexed hereto as Schedule VI;
(xix) Borrower shall deliver such other certificates, opinions, documents and or instruments as Lender may reasonably request; and
(xix) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasance, including Lender’s 's reasonable attorneys’ fees and expenses and Rating Agency ' fees and expenses. .
(b) If a Total Defeasance occurs the Borrower has elected to defease the entire Note and all of the requirements of this Section 2.7 2.5 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any all of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender Properties shall execute any and all documents required to release the Mortgaged Property be released from the Lien Liens of the Mortgage and the Assignment of Leases their respective Mortgages and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the LoanNote. In connection with any such the release of the LienLiens, the Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion)Date, a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the each jurisdiction in which the Mortgaged an Individual Property is located and contain standard provisions protecting the rights of a releasing lendersatisfactory to Lender in its sole discretion. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer's Certificate certifying that such documentation (i) is in compliance with all legal requirements, and (ii) will effect such releases in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of LeasesMortgages, including Lender’s 's reasonable attorneys’ ' fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)2.5, no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release of the any Lien of the any Mortgage on any of the Mortgaged PropertyProperties.
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Total Defeasance. Borrower shall have the right at any time after the First Open Defeasance Date and prior to the First Open Prepayment Date to obtain a release of the Lien of the Mortgage encumbering the Mortgaged Property (a “Total Defeasance”) upon satisfaction of the following conditions:
When (i) Borrower shall there is held, by or for the account of the Trustee, Defeasance Collateral in such principal amounts, bearing interest at such fixed rates and with such maturities, including any applicable redemption premiums, as will provide Lender at least thirty sufficient funds to pay, or to redeem in accordance with Section 5.04 of this Indenture, all obligations to Owners in whole (30) days’ prior written notice (or such shorter period to be verified by a nationally recognized firm of time if permitted by Lender in its sole discretion) specifying a date (the “Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total Defeasance;
independent verification agents), (ii) Borrower any required notice of redemption shall pay have been duly given in accordance with this Indenture or irrevocable instructions to Lender (A) all payments of interest due on give notice shall have been given to the Loan to and including the Defeasance Date and (B) all other sumsTrustee, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit all the Total Defeasance Collateral into rights hereunder of the Defeasance Collateral Account Fiduciaries have been provided for, and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d) hereof;
(iv) Borrower the Trustee shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender have received an opinion of counsel for Borrower Counsel to the effect that is customary in commercial lending transactions and subject only to normal qualifications, assumptions and exceptions opining, among other things, that (w) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (x) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code and defeasance will not adversely affect the status exclusion of the Loan as indebtedness interest on any Bond from gross income for federal income tax purposes, (z) delivery then upon Written Notice from the Corporation to the Trustee, such Owners shall cease to be entitled to any benefit or security under this Indenture except the right to receive payment of the Total Defeasance Collateral funds so held and other rights which by their nature cannot be satisfied prior to or simultaneously with termination of the lien hereof, the security interests created by this Indenture (except in such funds and investments) shall terminate, and the grant of a Corporation, after providing for all Operating Expenses, and the Trustee shall execute and deliver such instruments as may be necessary to discharge the Trustee’s lien and security interest therein interests created hereunder and to Lender shall not constitute an avoidable preference under Section 547 make the Pledged TSRs and other Collateral payable to the order of the Bankruptcy Code registered owner of the Residual Certificate. Upon such defeasance, the funds and investments required to pay or applicable state law;
(vi) If redeem the Bonds shall be irrevocably set aside for that purpose, subject, however, to Section 5.06 of this Indenture, and money held for defeasance shall be invested only as provided above in this section and applied by the Trustee and other Paying Agents, if any, to the extent required retirement of the Bonds. Any funds or property held by the Rating Agencies, a non-consolidation opinion with respect Trustee and not required for payment or redemption of the Bonds shall be distributed to the Successor Borrower;
(vii) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies to the effect that the release registered owner of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstanding;
(viii) Borrower shall deliver an officer’s certificate certifying that the requirements set forth in this Section 2.7 have been satisfied;
(ix) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xi) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below), no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged PropertyResidual Certificate.
Appears in 1 contract
Samples: Indenture
Total Defeasance. Borrower shall have (i) Notwithstanding any provisions of this Section 2.4 to the right contrary, including, without limitation, subsection (a) of this Section 2.4, at any time after the First Open earlier to occur of the (1) expiration of the REMIC Prohibition Period or (2) expiration of the Substitution/Defeasance Date and prior to Lockout Period, Borrower may cause the First Open Prepayment Date to obtain a release of the Lien Property from the lien of the Mortgage encumbering and the Mortgaged Property (a “Total Defeasance”) other Loan Documents upon the satisfaction of the following conditions:
(iA) Borrower no Event of Default shall provide Lender at least exist under any of the Loan Documents;
(B) not less than thirty (30) days’ (but not more than ninety (90)) days prior written notice (or such shorter period of time if permitted by shall be given to Lender in its sole discretion) specifying a date on which the Defeasance Collateral (as hereinafter defined) is to be delivered (the “Defeasance "RELEASE DATE"), such date being on a Scheduled Payment Date”) on which ; provided, however, that Borrower shall have satisfied the conditions right (i) to cancel such notice by providing Lender with notice of cancellation ten (10) days prior to the scheduled Release Date, or (ii) to extend the scheduled Release Date until the next Scheduled Payment Date; provided that in this Section 2.7(a) each case, Borrower shall pay all of Lender's reasonable costs and on which it shall effect the Total Defeasanceexpenses incurred as a result of such cancellation or extension;
(ii) Borrower shall pay to Lender (AC) all payments of accrued and unpaid interest due on the Loan to and including the Defeasance Date and (B) all other sums, then sums due under the Note, this Loan Agreement, the Mortgage Agreement and under the other Loan DocumentsDocuments up to the Release Date, including, without limitation, all reasonable fees, costs and expenses incurred by Lender and its agents in connection with such release (including, without limitation, reasonable legal fees and expenses for the review and preparation of the Defeasance Security Agreement (as hereinafter defined) and of the other materials described in Section 2.4(b)(i)(D) below and any related -18 documentation, and any servicing fees, Rating Agency fees or other costs related to such release), shall be paid in full on or prior to the Release Date;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(vD) Borrower shall deliver to Lender an opinion on or prior to the Release Date:
(1) a pledge and security agreement, in form and substance which would be satisfactory to a prudent institutional mortgage loan lender, creating a first priority security interest in favor of Lender in the Defeasance Collateral, as defined herein (the "DEFEASANCE SECURITY AGREEMENT"), which shall provide, among other things, that any excess amounts received by Lender from the Defeasance Collateral over the amounts payable by Borrower on a given Scheduled Payment Date, which excess amounts are not required to cover all or any portion of amounts payable on a future Scheduled Payment Date, shall be refunded to Borrower promptly after each such Scheduled Payment Date;
(2) direct non-callable obligations of the United States of America (or other obligations which are "government securities" within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, to the extent the applicable Rating Agencies rating the Securities have confirmed in writing will not cause a downgrade, withdrawal or qualification of the initial, or, if higher, then applicable ratings of the Securities), that provide for payments prior and as close as possible to (but in no event later than) all successive Scheduled Payment Dates occurring after the Release Date, with each such payment being equal to or greater than the amount of the corresponding Monthly Payment Amount required to be paid under this Agreement and the Note (including all amounts due on the Maturity Date) for the balance of the term hereof (the "DEFEASANCE COLLATERAL"), each of which shall be duly endorsed by the holder thereof as directed by Lender or accompanied by a written instrument of transfer in form and substance which would be satisfactory to a prudent lender (including, without limitation, such certificates, documents and instruments as may be required by the depository institution holding such securities or the issuer thereof, as the case may be, to effectuate book-entry transfers and pledges through the book-entry facilities of such institution) in order to perfect upon the delivery of the Defeasance Security Agreement the first priority security interest therein in favor of Lender in conformity with all applicable state and federal laws governing granting of such security interests;
(3) a certificate of Borrower certifying that all of the requirements set forth in this Section 2.4(b)(i) have been satisfied;
(4) one or more opinions of counsel for Borrower that is customary in commercial lending transactions form and subject only substance and delivered by counsel which would be satisfactory to normal qualifications, assumptions and exceptions opininga prudent lender stating, among other things, that (wi) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and that the Defeasance Security Agreement is enforceable against Borrower in accordance with its terms, (ii) the release of the lien of the Mortgage and the Total pledge of Defeasance Collateral, (x) if a Securitization has occurred, the Collateral will not directly or indirectly result in or cause any REMIC Trust formed pursuant that then holds the Note to such Securitization will not fail to maintain its status as a “real estate mortgage REMIC Trust and (iii) the defeasance will not cause any REMIC Trust to be an "investment conduit” within company" under the meaning Investment Company Act of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a)1940, at Borrower's cost;
(y5) a Total certificate in form and scope which would be acceptable to a prudent lender from an Acceptable Accountant certifying that the Defeasance pursuant Collateral will generate amounts sufficient to this Section 2.7 will not result in a deemed exchange for purposes make all payments of principal and interest due under the Code and will not adversely affect Note (including the status scheduled outstanding principal balance of the Loan as indebtedness for federal income tax purposes, (z) delivery of due on the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;Maturity Date); and
(vi6) If such other certificates, documents and to the extent required by the Rating Agencies, instruments as a non-consolidation opinion with respect to the Successor Borrower;prudent institutional lender would require; and
(viiE) Borrower shall deliver to in the event the Loan is held by a REMIC Trust, Lender a has received written confirmation in writing from the applicable any Rating Agencies to the effect Agency rating any Securities that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgradingdowngrade, withdrawal withdrawal, or qualification of the respective ratings in effect immediately prior then assigned to such defeasance for any of the Certificates issued in connection with the Securitization which are then outstanding;Securities.
(viiiii) Borrower shall deliver an officer’s certificate certifying that the requirements set forth in this Section 2.7 have been satisfied;
(ix) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xi) Borrower shall pay all costs and expenses of Lender incurred in connection Upon compliance with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 have been satisfied2.4(b)(i), including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender Property shall execute any and all documents required to release the Mortgaged Property be released from the Lien lien of the Mortgage and the Assignment of Leases other Loan Documents, and the Total Defeasance Collateral shall constitute collateral which shall secure the Note and all other obligations under the Loan Documents. Lender will, at Borrower's expense, execute and deliver any agreements reasonably requested by Borrower to release the lien of the Mortgage and the other Loan Documents from the Property.
(iii) Upon the release of the Property in accordance with this Section 2.4(b), Borrower shall (at Lender's sole and absolute discretion) assign all its obligations and rights under the Note, together with the pledged Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted a successor entity designated and approved by Lender in its sole discretionand absolute discretion ("SUCCESSOR BORROWER"), . Successor Borrower shall execute an assignment and assumption agreement in form and substance which would be satisfactory to a release of Lien (prudent lender pursuant to which it shall assume Borrower's obligations under the Note and related Loan Documents) for execution by Lenderthe Defeasance Security Agreement. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located As conditions to such assignment and contain standard provisions protecting the rights of a releasing lender. In additionassumption, Borrower shall provide all other documentation (A) deliver to Lender reasonably requires to be one or more opinions of counsel in form and substance and delivered by counsel which would be satisfactory to a prudent lender stating, among other things, that such assignment and assumption agreement is enforceable against Borrower and the Successor Borrower in accordance with its terms and that the Note, the Defeasance Security Agreement and the other Loan Documents, as so assigned and assumed, are enforceable against the Successor Borrower in accordance with their respective terms, and opining to such other matters relating to Successor Borrower and its organizational structure as Lender may require, and (B) pay all reasonable fees, costs and expenses incurred by Lender or its agents in connection with such releaseassignment and assumption (including, without limitation, legal fees and expenses and for the review of the proposed transferee and the preparation of the assignment and assumption agreement and related certificates, documents and instruments and any fees payable to any Rating Agencies and their counsel in connection with the issuance of the confirmation referred to in subsection (b)(i)(E) above). Upon such assignment and assumption, Borrower shall pay all costsbe relieved of its obligations hereunder, taxes under the Note, under the other Loan Documents and expenses associated with under the release of the Lien of the Mortgage and the Assignment of LeasesDefeasance Security Agreement, including Lender’s reasonable attorneys’ fees. Except except as expressly set forth in the assignment and assumption agreement.
(iv) For purposes of this Section 2.7(a)(or 2.4, "REMIC PROHIBITION PERIOD" means the two-year period commencing with the "startup day" within the meaning of Section 860G(a)(9) of the Code of any REMIC Trust that holds the Note. In no event shall Lender have any obligation to notify Borrower that a REMIC Prohibition Period is in effect with respect to the Loan, except that Lender shall notify Borrower if any REMIC Prohibition Period is in effect with respect to the Loan after receiving any notice described in Section 2.7(b) below2.4(b)(i)(B); provided, no repaymenthowever, prepayment that the failure of Lender to so notify Borrower shall not impose any liability on Lender or defeasance of all or grant Borrower any portion of right to defease the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Propertyduring any such REMIC Prohibition Period.
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Total Defeasance. (a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Permitted Prepayment Date Date, to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering the Mortgaged Individual Property by providing Lender with the Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(i) Borrower shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due on the Loan to and including the Total Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.5.4 and Sections 2.7(c) and (d) 2.5.5 hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the a Total Defeasance Event pursuant to this Section 2.7(a)2.5.1, (yC) a the Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, (zD) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
law and (viE) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viivi) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiivii) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.5.1 have been satisfied;
(ixviii) Borrower shall deliver a certificate of a “big four” or other nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and;
(xix) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasanceTotal Defeasance Event, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. ;
(xi) If a Total Defeasance occurs and all of the requirements Other Borrowers have not elected to voluntarily defease the entire amount of this Section 2.7 all of the Other Loans and obtain a release of the lien of the Other Mortgages encumbering all the Other Properties, or the Other Borrowers have been satisfied, including those set forth in Section 2.7(e) below, and provided no not satisfied all of the conditions for a “Event of DefaultTotal Defeasance Event” (as defined in any of the Crossed Other Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or 2.5.1 of the Other Loan Agreements, then Borrower shall cause the Other Borrowers to deposit with the Other Lenders the Additional Partial Defeasance Collateral into the “Defeasance Collateral Account” (as defined in the Other Loan Agreements) and shall cause the Other Borrowers to satisfy the conditions set forth in Section 2.7(b) below), no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Property.2.5.3
Appears in 1 contract
Samples: Loan Agreement (Wells Real Estate Investment Trust Inc)
Total Defeasance. So long as no Event of Default has occurred and is continuing, Borrower shall have the right at any time after the First Open Defeasance Date and prior to defease the First Open Prepayment Date to obtain a release Fixed Rate Component of the Lien of the Mortgage encumbering the Mortgaged Property Loan (a “Total Defeasance”) upon satisfaction of the following conditions:
(i) Borrower shall provide Lender at least thirty (30) days’ prior written notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date (the “Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a2.18(a) and on which it shall effect the Total Defeasance;
(ii) Borrower shall pay to Lender (A) all payments of interest due on the Loan to and including the Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a2.18(a) and Sections 2.7(c2.18(c) and (d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary in commercial lending transactions and subject only to normal qualifications, assumptions and exceptions opining, among other things, that (w) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (x) if a Securitization has occurred, the REMIC Trust trust formed pursuant to such any Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a2.18(a), (y) a Total Defeasance pursuant to this Section 2.7 2.18 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (z) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(vii) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies if requested by Lender to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a2.18(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates Securities issued in connection with the any Securitization which are then outstanding;
(viii) Borrower shall deliver an officer’s certificate certifying that the requirements set forth in this Section 2.7 2.18 have been satisfied;
(ix) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xi) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 2.18 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements Default exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or 2.18(a) (or in Section 2.7(b2.18(b) below), no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Property.
Appears in 1 contract
Samples: Loan Agreement (Affordable Residential Communities Inc)
Total Defeasance. (i) Provided (i) no Event of Default shall have occurred and remain uncured and (ii) Borrower shall not have made a prepayment of the Loan in accordance with Section 2.7 hereof and/or a Release of a Released Property in accordance with Section 2.9 hereof, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Release Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering Security Instrument by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(iA) Borrower shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days notice specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(iiB) Unless otherwise agreed to in writing by Lender, Borrower shall pay to Lender (A1) all payments of principal and interest due and payable on the Loan to and including the Total Defeasance Date (provided, that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan to and including the Defeasance Date and next occurring Monthly Payment Date); (B2) all other sums, then if any, due and payable under the Note, this Loan Agreement, the Mortgage Security Instrument and the other Loan DocumentsDocuments through and including the Total Defeasance Date (or, if the Total Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (3) all escrow, closing, recording, legal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Security Instruments on the Properties, the review of the proposed Defeasance Collateral and the preparation of the Security Agreement, the Defeasance Collateral Account Agreement and related documentation; and (4) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note or the Total Defeasance Event;
(iiiC) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d2.8(c) hereof;
(ivD) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(vE) Borrower shall deliver to Lender (1) an opinion of counsel for Borrower that is customary in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (wI) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, ; (xII) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the IRS Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, ; and (zIII) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
; (vi2) If and to the extent required by the Rating Agencies, a non-consolidation opinion REMIC Opinion with respect to the Total Defeasance Event; and (3) a New Non-Consolidation Opinion with respect to Successor Borrower;
(viiF) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiiG) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.8 have been satisfied;
(ixH) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;; and
(xI) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and.
(xiii) If Borrower shall pay all costs has elected to defease the entire Loan and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 2.8 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any each Individual Property shall be released from the lien of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases Security Instruments and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the Loan. In connection with any such the release of the Lienlien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Total Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), a release of Lien lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the each jurisdiction in which the Mortgaged each Individual Property is located and contain that contains standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay , together with an Officer’s Certificate certifying that such documentation (1) is in compliance with all costsLegal Requirements, taxes and expenses associated (2) will effect such release in accordance with the release terms of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ feesthis Agreement. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)Article 2, no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged PropertySecurity Instruments.
Appears in 1 contract
Total Defeasance. (a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Permitted Prepayment Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(i) Borrower shall provide Lender at least thirty not less than fifteen (3015) daysBusiness Days’ prior written notice (or such shorter period of time if as may be permitted by Lender in its sole discretion) specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur. Borrower’s notice of defeasance shall create an obligation of Borrower to defease the entire Loan as set forth therein, but may be rescinded by a written notice to Lender prior to the applicable Total Defeasance Date. Borrower agrees to indemnify Lender and to hold Lender harmless from and against any and all costs and expenses Lender sustains or incurs as a consequence of any such rescission of a notice of defeasance;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due on the Loan to and including the Total Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.5.3 and Sections 2.7(c) and (d) 2.5.4 hereof;
(iv) Borrower shall execute and deliver to Lender a Defeasance Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, (A) that (w) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) that, if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the a Total Defeasance Event pursuant to this Section 2.7(a2.5 (assuming a “startup day” (within the meaning of Section 8600(a)(9) of the Code) that is the earlier of the actual start-up date and the date specified in clause (a) of the definition of “Release Date” contained herein), and (yC) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (z) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viivi) If a Securitization has occurred, Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiivii) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.5 have been satisfied;
(ixviii) Borrower shall deliver a certificate of a “big four” or other nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(ix) Intentionally omitted;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xi) Borrower shall pay all reasonable out-of-pocket costs and expenses of Lender incurred in connection with the defeasanceTotal Defeasance Event, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency Agencies’ fees and expenses. .
(b) If a Total Defeasance occurs Borrower has elected to defease the entire Note and all of the requirements of this Section 2.7 2.5 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender Property shall execute any and all documents required to release the Mortgaged Property be released from the Lien lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, Collateral pledged pursuant to the Defeasance Security Agreement, Agreement shall be the sole source of collateral securing the LoanNote. In connection with any such the release of the Lien, Borrower shall submit to LenderLender for its review, not less than thirty fifteen (3015) days prior to the Defeasance Date (or such shorter period of time as may be permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution to be executed by Lender. Such release shall be in a form appropriate in the jurisdiction applicable jurisdiction(s) in which the Mortgaged Property is located and contain that contains standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender that a reasonably requires prudent lender originating commercial loans for securitization similar to the Loan would require to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien lien of the Mortgage and the Assignment of LeasesMortgage, including Lender’s reasonable attorneys’ fees. Except as set forth in Section 2.4 or this Section 2.7(a)(or in Section 2.7(b) below)2.5, no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged Property.
(c) If Borrower has elected to defease the entire Note and the requirements of this Section 2.5 have been satisfied, in lieu of the release of the Property in accordance with Section 2.5.1(b), upon Borrower’s written request not less than fifteen (15) days prior to the date of the proposed assignment (or such shorter period of time as may be permitted by Lender in its sole discretion), Lender shall (i) assign, or sever into two (2) or more separate loans and assign, the Mortgages and the other Loan Documents to any Person designated by Borrower, which assignment and severance documents shall be in recordable form, (ii) deliver to or as directed by Borrower the original executed Note and all originally executed other notes which may have been consolidated, amended and/or restated in connection with the execution of the Note or, with respect to any note where the original has been lost, destroyed or mutilated, a lost note affidavit for the benefit of the assignee lender and the title insurance company insuring the Mortgages, as assigned, in form sufficient to permit such title insurance company to insure the lien of the Mortgages as assigned to and held by the assignee without exception for any matter relating to the lost, destroyed or mutilated note; provided that in no event shall Lender be required to deliver any indemnity with respect thereto, (iii) execute and deliver an allonge with respect to the Note and any other note(s) described in the clause (ii) above, (iv) deliver the original recorded copies of the Mortgages in Lender’s possession or, at Borrower’s sole cost and expense, certified copies of record, and (v) execute and deliver such other instruments of conveyance, assignment, termination, severance and release (including appropriate UCC statements) in recordable form as may reasonably be requested by Borrower to evidence such assignment and/or severance, provided, in each case, without covenant, recourse, representation (other than representations that such assignment has been duly authorized and that Lender has not otherwise assigned or encumbered the Mortgages or the other Loan Documents except as expressly contemplated therein) or warranty by Lender and notwithstanding anything to the contrary contained herein, pursuant to instruments or other documents in form and substance reasonably satisfactory to Lender. Concurrently with the delivery of the Total Defeasance Collateral to Lender, and whether or not Borrower shall request a release or an assignment as set forth in this Section 2.5.1, Lender shall deliver to Borrower (1) a payoff letter in customary form, (2) all original insurance policies relating to the Property held by or on behalf of Lender, (3) any amounts held in escrow or in any reserve account pursuant to the Loan Documents or otherwise, (4) any other collateral that may have been delivered to Lender in connection with the Loan, and (5) a termination (subject to customary “clawback” provisions) of any guaranties delivered to Lender in connection with the Loan (except to the extent of any obligations thereunder that are expressly intended to survive pursuant to the terms thereof), duly executed by Lender, in each case with respect to clause (1) or (5), in form and substance reasonably satisfactory to Lender. In connection with any transaction contemplated by this Section 2..5.1(c), Borrower shall submit to Lender for its review, not less than fifteen (15) days prior to the Defeasance Date (or such shorter period of time as may be permitted by Lender in its sole discretion), all instruments and documents to be executed by Lender (other than a payoff letter under clause (1) above). All reasonable out-of-pocket costs and expenses incurred by Lender pursuant to this Section 2.5.1(c) shall be paid by Borrower (other than any costs and expenses incurred by Lender in connection with the preparation and delivery of a lost note affidavit in accordance with clause (ii) above or a payoff letter as contemplated by clause (1) above and provided that in no event shall Borrower be required to pay any fee or premium to the Lender or the Servicer in connection herewith).
Appears in 1 contract
Total Defeasance. (a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Permitted Prepayment Date Date, to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering all Individual Properties by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(i) Borrower shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due on the Loan to and including the Total Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.5.4 and Sections 2.7(c) and (d) 2.5.5 hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the a Total Defeasance Event pursuant to this Section 2.7(a)2.5.1, (yC) a the Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, (zD) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
law and (viE) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viivi) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiivii) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.5.1 have been satisfied;
(ixviii) Borrower shall deliver a certificate of a “big four” or other nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and;
(xix) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasanceTotal Defeasance Event, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If ; and
(xi) All of the Other Borrowers shall have elected to voluntarily defease the entire amount of all of the Other Loans and obtain a release of the lien of the Other Mortgages encumbering all the Other Properties, and the Other Borrowers shall have satisfied all of the conditions for a “Total Defeasance occurs Event” (as defined in the Other Loan Agreements) set forth in Section 2.5.1 of the Other Loan Agreements.
(b) If Borrower has elected to defease the entire Note and all of the requirements of this Section 2.7 2.5 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any all of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender Individual Properties shall execute any and all documents required to release the Mortgaged Property be released from the Lien lien of the Mortgage and security agreements or pledges entered into as, or in connection with, the Assignment of Leases other Loan Documents, and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the LoanNote. Notwithstanding anything to the contrary set forth herein or in any other Loan Document, none of the Individual Properties shall be released from the Mortgage or any of the other Loan Documents unless the Other Borrowers have elected to voluntarily defease the entire amount of all of the Other Loans and obtain a release of the lien of the Other Mortgages encumbering all the Other Properties, and the Other Borrowers have satisfied all of the conditions for a “Total Defeasance Event” (as defined in the Other Loan Agreements) set forth in Section 2.5.1 of the Other Loan Agreements. In connection with any such the release of the LienLiens, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is Individual Properties are located and shall contain standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such releases in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release releases of the Lien lien of the Mortgage and the Assignment of LeasesMortgage, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)2.5, no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of any Mortgage on any of the Mortgage on the Mortgaged PropertyIndividual Properties.
Appears in 1 contract
Samples: Loan Agreement (Wells Real Estate Investment Trust Inc)
Total Defeasance. Borrower shall have (i) Notwithstanding any provisions of this Section 2.4 to the right contrary, including, without limitation, subsection (a) of this Section 2.4, at any time after the First Open earlier to occur of the (1) expiration of the REMIC Prohibition Period or (2) expiration of the Substitution/Defeasance Date and prior to Lockout Period, Borrower may cause the First Open Prepayment Date to obtain a release of the Lien Property from the lien of the Mortgage encumbering and the Mortgaged Property (a “Total Defeasance”) other Loan Documents upon the satisfaction of the following conditions:
(iA) Borrower no Event of Default shall provide Lender at least exist under any of the Loan Documents;
(B) not less than thirty (30) days’ (but not more than ninety (90)) days prior written notice (or such shorter period of time if permitted by shall be given to Lender in its sole discretion) specifying a date on which the Defeasance Collateral (as hereinafter defined) is to be delivered (the “Defeasance "RELEASE DATE"), such date being on a Scheduled Payment Date”) on which ; provided, however, that Borrower shall have satisfied the conditions right (i) to cancel such notice by providing Lender with notice of cancellation ten (10) days prior to the scheduled Release Date, or (ii) to extend the scheduled Release Date until the next Scheduled Payment Date; provided that in this Section 2.7(a) each case, Borrower shall pay all of Lender's reasonable costs and on which it shall effect the Total Defeasanceexpenses incurred as a result of such cancellation or extension;
(ii) Borrower shall pay to Lender (AC) all payments of accrued and unpaid interest due on the Loan to and including the Defeasance Date and (B) all other sums, then sums due under the Note, this Loan Agreement, the Mortgage Agreement and under the other Loan DocumentsDocuments up to the Release Date, including, without limitation, all reasonable fees, costs and expenses incurred by Lender and its agents in connection with such release (including, without limitation, reasonable legal fees and expenses for the review and preparation of the Defeasance Security Agreement (as hereinafter defined) and of the other materials described in Section 2.4(b)(i)(D) below and any related documentation, and any servicing fees, Rating Agency fees or other costs related to such release), shall be paid in full on or prior to the Release Date;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(vD) Borrower shall deliver to Lender an opinion on or prior to the Release Date:
(1) a pledge and security agreement, in form and substance which would be satisfactory to a prudent institutional mortgage loan lender, creating a first priority security interest in favor of Lender in the Defeasance Collateral, as defined herein (the "DEFEASANCE SECURITY AGREEMENT"), which shall provide, among other things, that any excess amounts received by Lender from the Defeasance Collateral over the amounts payable by Borrower on a given Scheduled Payment Date, which excess amounts are not required to cover all or any portion of amounts payable on a future Scheduled Payment Date, shall be refunded to Borrower promptly after each such Scheduled Payment Date;
(2) direct non-callable obligations of the United States of America (or other obligations which are "government securities" within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, to the extent the applicable Rating Agencies rating the Securities have confirmed in writing will not cause a downgrade, withdrawal or qualification of the initial, or, if higher, then applicable ratings of the Securities), that provide for payments prior and as close as possible to (but in no event later than) all successive Scheduled Payment Dates occurring after the Release Date, with each such payment being equal to or greater than the amount of the corresponding Monthly Payment Amount required to be paid under this Agreement and the Note (including all amounts due on the Maturity Date) for the balance of the term hereof (the "DEFEASANCE COLLATERAL"), each of which shall be duly endorsed by the holder thereof as directed by Lender or accompanied by a written instrument of transfer in form and substance which would be satisfactory to a prudent lender (including, without limitation, such certificates, documents and instruments as may be required by the depository institution holding such securities or the issuer thereof, as the case may be, to effectuate book-entry transfers and pledges through the book-entry facilities of such institution) in order to perfect upon the delivery of the Defeasance Security Agreement the first priority security interest therein in favor of Lender in conformity with all applicable state and federal laws governing granting of such security interests;
(3) a certificate of Borrower certifying that all of the requirements set forth in this Section 2.4(b)(i) have been satisfied;
(4) one or more opinions of counsel for Borrower that is customary in commercial lending transactions form and subject only substance and delivered by counsel which would be satisfactory to normal qualifications, assumptions and exceptions opininga prudent lender stating, among other things, that (wi) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and that the Defeasance Security Agreement is enforceable against Borrower in accordance with its terms, (ii) the release of the lien of the Mortgage and the Total pledge of Defeasance Collateral, (x) if a Securitization has occurred, the Collateral will not directly or indirectly result in or cause any REMIC Trust formed pursuant that then holds the Note to such Securitization will not fail to maintain its status as a “real estate mortgage REMIC Trust and (iii) the defeasance will not cause any REMIC Trust to be an "investment conduit” within company" under the meaning Investment Company Act of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a)1940, at Borrower's cost;
(y5) a Total certificate in form and scope which would be acceptable to a prudent lender from an Acceptable Accountant certifying that the Defeasance pursuant Collateral will generate amounts sufficient to this Section 2.7 will not result in a deemed exchange for purposes make all payments of principal and interest due under the Code and will not adversely affect Note (including the status scheduled outstanding principal balance of the Loan as indebtedness for federal income tax purposes, (z) delivery of due on the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;Maturity Date); and
(vi6) If such other certificates, documents and to the extent required by the Rating Agencies, instruments as a non-consolidation opinion with respect to the Successor Borrower;prudent institutional lender would require; and
(viiE) Borrower shall deliver to in the event the Loan is held by a REMIC Trust, Lender a has received written confirmation in writing from the applicable any Rating Agencies to the effect Agency rating any Securities that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgradingdowngrade, withdrawal withdrawal, or qualification of the respective ratings in effect immediately prior then assigned to such defeasance for any of the Certificates issued in connection with the Securitization which are then outstanding;Securities.
(viiiii) Borrower shall deliver an officer’s certificate certifying that the requirements set forth in this Section 2.7 have been satisfied;
(ix) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xi) Borrower shall pay all costs and expenses of Lender incurred in connection Upon compliance with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 have been satisfied2.4(b)(i), including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender Property shall execute any and all documents required to release the Mortgaged Property be released from the Lien lien of the Mortgage and the Assignment of Leases other Loan Documents, and the Total Defeasance Collateral shall constitute collateral which shall secure the Note and all other obligations under the Loan Documents. Lender will, at Borrower's expense, execute and deliver any agreements reasonably requested by Borrower to release the lien of the Mortgage and the other Loan Documents from the Property.
(iii) Upon the release of the Property in accordance with this Section 2.4(b), Borrower shall (at Lender's sole and absolute discretion) assign all its obligations and rights under the Note, together with the pledged Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted a successor entity designated and approved by Lender in its sole discretionand absolute discretion ("SUCCESSOR BORROWER"), . Successor Borrower shall execute an assignment and assumption agreement in form and substance which would be satisfactory to a release of Lien (prudent lender pursuant to which it shall assume Borrower's obligations under the Note and related Loan Documents) for execution by Lenderthe Defeasance Security Agreement. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located As conditions to such assignment and contain standard provisions protecting the rights of a releasing lender. In additionassumption, Borrower shall provide all other documentation (A) deliver to Lender reasonably requires to be one or more opinions of counsel in form and substance and delivered by counsel which would be satisfactory to a prudent lender stating, among other things, that such assignment and assumption agreement is enforceable against Borrower and the Successor Borrower in accordance with its terms and that the Note, the Defeasance Security Agreement and the other Loan Documents, as so assigned and assumed, are enforceable against the Successor Borrower in accordance with their respective terms, and opining to such other matters relating to Successor Borrower and its organizational structure as Lender may require, and (B) pay all reasonable fees, costs and expenses incurred by Lender or its agents in connection with such releaseassignment and assumption (including, without limitation, legal fees and expenses and for the review of the proposed transferee and the preparation of the assignment and assumption agreement and related certificates, documents and instruments and any fees payable to any Rating Agencies and their counsel in connection with the issuance of the confirmation referred to in subsection (b)(i)(E) above). Upon such assignment and assumption, Borrower shall pay all costsbe relieved of its obligations hereunder, taxes under the Note, under the other Loan Documents and expenses associated with under the release of the Lien of the Mortgage and the Assignment of LeasesDefeasance Security Agreement, including Lender’s reasonable attorneys’ fees. Except except as expressly set forth in the assignment and assumption agreement.
(iv) For purposes of this Section 2.7(a)(or 2.4, "REMIC PROHIBITION PERIOD" means the two-year period commencing with the "startup day" within the meaning of Section 860G(a)(9) of the Code of any REMIC Trust that holds the Note. In no event shall Lender have any obligation to notify Borrower that a REMIC Prohibition Period is in effect with respect to the Loan, except that Lender shall notify Borrower if any REMIC Prohibition Period is in effect with respect to the Loan after receiving any notice described in Section 2.7(b) below2.4(b)(i)(B); provided, no repaymenthowever, prepayment that the failure of Lender to so notify Borrower shall not impose any liability on Lender or defeasance of all or grant Borrower any portion of right to defease the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Propertyduring any such REMIC Prohibition Period.
Appears in 1 contract
Total Defeasance. Borrower shall have (i) Notwithstanding any provisions of this Section 2.4 to the right contrary, including, without limitation, subsection (a) of this Section 2.4, at any time after the First Open earlier to occur of the (1) expiration of the REMIC Prohibition Period or (2) expiration of the Substitution/Defeasance Date and prior to Lockout Period, Borrower may cause the First Open Prepayment Date to obtain a release of the Lien Property from the lien of the Mortgage encumbering and the Mortgaged Property (a “Total Defeasance”) other Loan Documents upon the satisfaction of the following conditions:
(iA) Borrower no Event of Default shall provide Lender at least exist under any of the Loan Documents;
(B) not less than thirty (30) days’ (but not more than ninety (90)) days prior written notice (or such shorter period of time if permitted by shall be given to Lender in its sole discretion) specifying a date on which the Defeasance Collateral (as hereinafter defined) is to be delivered (the “Defeasance "RELEASE Date”) "), such date being on which a Scheduled Payment Date; provided, however, that Borrower shall have satisfied the conditions right (i) to cancel such notice by providing Lender with notice of cancellation ten (10) days prior to the scheduled Release Date, or (ii) to extend the scheduled Release Date until the next Scheduled Payment Date; provided that in this Section 2.7(a) each case, Borrower shall pay all of Lender's reasonable costs and on which it shall effect the Total Defeasanceexpenses incurred as a result of such cancellation or extension;
(ii) Borrower shall pay to Lender (AC) all payments of accrued and unpaid interest due on the Loan to and including the Defeasance Date and (B) all other sums, then sums due under the Note, this Loan Agreement, the Mortgage Agreement and under the other Loan DocumentsDocuments up to the Release Date, including, without limitation, all reasonable fees, costs and expenses incurred by Lender and its agents in connection with such release (including, without limitation, reasonable legal fees and expenses for the review and preparation of the Defeasance Security Agreement (as hereinafter defined) and of the other materials described in Section 2.4(b)(i)(D) below and any related documentation, and any servicing fees, Rating Agency fees or other costs related to such release), shall be paid in full on or prior to the Release Date;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(vD) Borrower shall deliver to Lender an opinion on or prior to the Release Date:
(1) a pledge and security agreement, in form and substance which would be satisfactory to a prudent institutional mortgage loan lender, creating a first priority security interest in favor of Lender in the Defeasance Collateral, as defined herein (the "DEFEASANCE SECURITY AGREEMENT"), which shall provide, among other things, that any excess amounts received by Lender from the Defeasance Collateral over the amounts payable by Borrower on a given Scheduled Payment Date, which excess amounts are not required to cover all or any portion of amounts payable on a future Scheduled Payment Date, shall be refunded to Borrower promptly after each such Scheduled Payment Date;
(2) direct non-callable obligations of the United States of America (or other obligations which are "government securities" within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, to the extent the applicable Rating Agencies rating the Securities have confirmed in writing will not cause a downgrade, withdrawal or qualification of the initial, or, if higher, then applicable ratings of the Securities), that provide for payments prior and as close as possible to (but in no event later than) all successive Scheduled Payment Dates occurring after the Release Date, with each such payment being equal to or greater than the amount of the corresponding Monthly Payment Amount required to be paid under this Agreement and the Note (including all amounts due on the Maturity Date) for the balance of the term hereof (the "DEFEASANCE COLLATERAL"), each of which shall be duly endorsed by the holder thereof as directed by Lender or accompanied by a written instrument of transfer in form and substance which would be satisfactory to a prudent lender (including, without limitation, such certificates, documents and instruments as may be required by the depository institution holding such securities or the issuer thereof, as the case may be, to effectuate book-entry transfers and pledges through the book-entry facilities of such institution) in order to perfect upon the delivery of the Defeasance Security Agreement the first priority security interest therein in favor of Lender in conformity with all applicable state and federal laws governing granting of such security interests;
(3) a certificate of Borrower certifying that all of the requirements set forth in this Section 2.4(b)(i) have been satisfied;
(4) one or more opinions of counsel for Borrower that is customary in commercial lending transactions form and subject only substance and delivered by counsel which would be satisfactory to normal qualifications, assumptions and exceptions opininga prudent lender stating, among other things, that (wi) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and that the Defeasance Security Agreement is enforceable against Borrower in accordance with its terms, (ii) the release of the lien of the Mortgage and the Total pledge of Defeasance Collateral, (x) if a Securitization has occurred, the Collateral will not directly or indirectly result in or cause any REMIC Trust formed pursuant that then holds the Note to such Securitization will not fail to maintain its status as a “real estate mortgage REMIC Trust and (iii) the defeasance will not cause any REMIC Trust to be an "investment conduit” within company" under the meaning Investment Company Act of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a)1940, at Borrower's cost;
(y5) a Total certificate in form and scope which would be acceptable to a prudent lender from an Acceptable Accountant certifying that the Defeasance pursuant Collateral will generate amounts sufficient to this Section 2.7 will not result in a deemed exchange for purposes make all payments of principal and interest due under the Code and will not adversely affect Note (including the status scheduled outstanding principal balance of the Loan as indebtedness for federal income tax purposes, (z) delivery of due on the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;Maturity Date); and
(vi6) If such other certificates, documents and to the extent required by the Rating Agencies, instruments as a non-consolidation opinion with respect to the Successor Borrower;prudent institutional lender would require; and
(viiE) Borrower shall deliver to in the event the Loan is held by a REMIC Trust, Lender a has received written confirmation in writing from the applicable any Rating Agencies to the effect Agency rating any Securities that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgradingdowngrade, withdrawal withdrawal, or qualification of the respective ratings in effect immediately prior then assigned to such defeasance for any of the Certificates issued in connection with the Securitization which are then outstanding;Securities.
(viiiii) Borrower shall deliver an officer’s certificate certifying that the requirements set forth in this Section 2.7 have been satisfied;
(ix) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xi) Borrower shall pay all costs and expenses of Lender incurred in connection Upon compliance with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 have been satisfied2.4(b)(i), including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender Property shall execute any and all documents required to release the Mortgaged Property be released from the Lien lien of the Mortgage and the Assignment of Leases other Loan Documents, and the Total Defeasance Collateral shall constitute collateral which shall secure the Note and all other obligations under the Loan Documents. Lender will, at Borrower's expense, execute and deliver any agreements reasonably requested by Borrower to release the lien of the Mortgage and the other Loan Documents from the Property.
(iii) Upon the release of the Property in accordance with this Section 2.4(b), Borrower shall (at Lender's sole and absolute discretion) assign all its obligations and rights under the Note, together with the pledged Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted a successor entity designated and approved by Lender in its sole discretionand absolute discretion ("SUCCESSOR BORROWER"), . Successor Borrower shall execute an assignment and assumption agreement in form and substance which would be satisfactory to a release of Lien (prudent lender pursuant to which it shall assume Borrower's obligations under the Note and related Loan Documents) for execution by Lenderthe Defeasance Security Agreement. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located As conditions to such assignment and contain standard provisions protecting the rights of a releasing lender. In additionassumption, Borrower shall provide all other documentation (A) deliver to Lender reasonably requires to be one or more opinions of counsel in form and substance and delivered by counsel which would be satisfactory to a prudent lender stating, among other things, that such assignment and assumption agreement is enforceable against Borrower and the Successor Borrower in accordance with its terms and that the Note, the Defeasance Security Agreement and the other Loan Documents, as so assigned and assumed, are enforceable against the Successor Borrower in accordance with their respective terms, and opining to such other matters relating to Successor Borrower and its organizational structure as Lender may require, and (B) pay all reasonable fees, costs and expenses incurred by Lender or its agents in connection with such releaseassignment and assumption (including, without limitation, legal fees and expenses and for the review of the proposed transferee and the preparation of the assignment and assumption agreement and related certificates, documents and instruments and any fees payable to any Rating Agencies and their counsel in connection with the issuance of the confirmation referred to in subsection (b)(i)(E) above). Upon such assignment and assumption, Borrower shall pay all costsbe relieved of its obligations hereunder, taxes under the Note, under the other Loan Documents and expenses associated with under the release of the Lien of the Mortgage and the Assignment of LeasesDefeasance Security Agreement, including Lender’s reasonable attorneys’ fees. Except except as expressly set forth in the assignment and assumption agreement.
(iv) For purposes of this Section 2.7(a)(or 2.4, "REMIC PROHIBITION PERIOD" means the two-year period commencing with the "startup day" within the meaning of Section 860G(a)(9) of the Code of any REMIC Trust that holds the Note. In no event shall Lender have any obligation to notify Borrower that a REMIC Prohibition Period is in effect with respect to the Loan, except that Lender shall notify Borrower if any REMIC Prohibition Period is in effect with respect to the Loan after receiving any notice described in Section 2.7(b) below2.4(b)(i)(B); provided, no repaymenthowever, prepayment that the failure of Lender to so notify Borrower shall not impose any liability on Lender or defeasance of all or grant Borrower any portion of right to defease the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Propertyduring any such REMIC Prohibition Period.
Appears in 1 contract
Total Defeasance. Borrower shall have the right at any time after the First Open Defeasance Date and prior to the First Open Prepayment Date to obtain a release of the Lien of the Mortgage encumbering the Mortgaged Property (a “Total Defeasance”) upon satisfaction of the following conditions:
When (i) Borrower shall there is held by or for the account of the Trustee Defeasance Collateral in such principal amounts, bearing interest at such fixed rates and with such maturities, including any applicable redemption premiums, as will provide Lender at least thirty sufficient funds to pay, or to redeem in accordance with Section 5.06 of this Trust Indenture, all obligations to Holders in whole (30) days’ prior written notice (or such shorter period to be verified by a nationally recognized firm of time if permitted by Lender in its sole discretion) specifying a date (the “Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total Defeasance;
independent verification agents), (ii) Borrower any required notice of the deposit of Defeasance Collateral and any required notice of redemption shall pay have been duly given in accordance with this Trust Indenture or irrevocable instructions to Lender (A) all payments of interest due on give notice shall have been given to the Loan to and including the Defeasance Date and (B) all other sumsTrustee, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit all the Total Defeasance Collateral into the Defeasance Collateral Account rights hereunder of Bondholders have been provided for and otherwise comply all incurred Operating Expenses have been satisfied in accordance with the provisions Section 2.03 of this Section 2.7(a) Trust Indenture, and Sections 2.7(c) and (d) hereof;
(iv) Borrower the Trustee shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender have received an opinion of counsel for Borrower Counsel to the effect that is customary such defeasance will not, in commercial lending transactions and subject only of itself, cause interest on any Tax-Exempt Bond to normal qualifications, assumptions and exceptions opining, among other things, that (w) Lender has a legal and valid perfected first priority security interest be included in the Defeasance Collateral Account and the Total Defeasance Collateral, (x) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan as indebtedness gross income for federal income tax purposes, (z) delivery then upon Written Notice from the Authority to the Trustee, the Bondholders under this Trust Indenture shall cease to be entitled to any benefit or security under this Trust Indenture, except the right to receive payment of the Total Defeasance Collateral funds held in such defeasance escrow and other rights which by their nature cannot be satisfied prior to or simultaneously with termination of the lien hereof, this Trust Indenture, and the grant lien and rights created by this Trust Indenture (except in such funds and investments) shall terminate and become null and void, and the Authority and the Trustee shall execute and deliver such instruments as may be necessary to discharge the Trustee’s lien and rights (except in such funds and investments) created hereunder. Upon such defeasance, the funds and investments required to pay or redeem the Bonds shall be irrevocably set aside for that purpose, subject, however, to Section 5.06 of a security interest therein this Trust Indenture, and money held for defeasance shall be invested only as provided above in this section and applied by the Trustee or other Paying Agents, if any, to Lender shall not constitute an avoidable preference under Section 547 the retirement of the Bankruptcy Code Bonds. Any funds or applicable state law;
(vi) If and to the extent required other property held by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(vii) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies to the effect that the release Trustee and not required for payment or redemption of the Mortgaged Property from Bonds shall be distributed in accordance with the Lien order of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstanding;
(viii) Borrower shall deliver an officer’s certificate certifying that the requirements set forth in this Section 2.7 have been satisfied;
(ix) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xi) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expensesAuthority. If a Total Defeasance occurs and all of the requirements of this Section 2.7 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below), no repayment, prepayment or Upon defeasance of all Outstanding Bonds, any funds or any portion property held by the Trustee and not required for payment or redemption of such Bonds shall be distributed by the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged PropertyTrustee in accordance with Section 5.03(k) hereof.
Appears in 1 contract
Samples: Trust Indenture
Total Defeasance. (a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Prepayment Lockout Expiration Date and prior to the First Open Prepayment Anticipated Repayment Date to obtain a release of the Lien Liens of the Mortgage Mortgages encumbering all of the Mortgaged Property Collateral Properties (a “"Total Defeasance”") upon satisfaction of the following conditions:
(i) Borrower shall provide Lender at least thirty (30) days’ days prior written notice (or such shorter period of time if permitted by Lender in its sole discretion) specifying a date Payment Date (the “"Defeasance Date”") on which Borrower shall have satisfied the conditions in this Section 2.7(a) 2.4.1 and on which it shall effect the Total Defeasancedefeasance;
(ii) Borrower shall pay to Lender (A) all payments of accrued and unpaid interest due on the Loan Principal balance of the Note to and including the Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage Mortgages and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.4.3 and Sections 2.7(c) and (d) 2.4.4 hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender Lender
(1) an opinion of counsel for Borrower that is customary in commercial lending transactions and subject only satisfactory to normal qualifications, assumptions and exceptions a prudent lender opining, among other things, that (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) if a Securitization Secondary Market Transaction has occurred, the REMIC Trust formed pursuant to such Securitization Secondary Market Transaction will not fail to maintain its status as a “"real estate mortgage investment conduit” " within the meaning of Section 860D of the Code as a result of the Total Defeasance defeasance pursuant to this Section 2.7(a)2.4.1, and (y) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (zC) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the U.S. Bankruptcy Code or applicable state law;
, and (vi2) If and to the extent required by the Rating Agencies, a non-consolidation opinion an Insolvency Opinion with respect to the Successor Borrower;
(viivi) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Comfort Letter with respect to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingdefeasance;
(viiivii) Borrower shall deliver an officer’s certificate Officer's Certificate certifying that the requirements set forth in this Section 2.7 2.4.1
(a) have been satisfied;
(ixviii) Borrower shall deliver a certificate of a nationally recognized Borrower's independent certified public accounting firm reasonably acceptable to Lender accountant certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(xix) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xix) Borrower shall pay all reasonable costs and expenses of Lender incurred in connection with the defeasance, including Lender’s 's reasonable attorneys’ ' fees and expenses and Rating Agency fees and expenses. .
(b) If a Total Defeasance occurs Borrower has elected to defease the entire Note and all of the requirements of this Section 2.7 2.4.1 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any the Collateral Properties shall be released from the Liens of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases Mortgages and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the LoanNote. In connection with any such the release of the LienLiens, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion)Date, a release releases of Lien Liens (and related Loan Documents) for execution by Lender. Such release releases shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is respective Collateral Properties are located and contain standard provisions protecting the rights of a releasing lendersatisfactory to Lender in its reasonable discretion. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such releasereleases, together with an Officer's Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such releases in accordance with the terms of this Agreement. Borrower shall pay all costs, taxes and expenses associated with the release releases of the Lien Liens of the Mortgage and the Assignment of LeasesMortgages, including Lender’s 's reasonable attorneys’ ' fees. Except as set forth in this Section 2.7(a)(or 2.4.1, in Section 2.7(b) below)2.4.2 or otherwise in this Agreement, no repayment, prepayment or defeasance of all or any portion of the Loan Note shall cause, give rise to a right to require, or otherwise result in, the release releases of the Lien Liens of the Mortgage Mortgages on the Mortgaged PropertyCollateral Properties.
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Total Defeasance. (i) Provided (i) no Event of Default shall have occurred and remain uncured and (ii) Borrower shall not have made a prepayment of the Loan in accordance with Section 2.7 hereof and/or a Release of a Released Property in accordance with Section 2.9 hereof, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Release Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering Security Instrument by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(iA) Borrower shall provide Lender at least not less than thirty (30) days’ prior written days notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days notice specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur;
(iiB) Unless otherwise agreed to in writing by Lxxxxx, Borrower shall pay to Lender (A1) all payments of principal and interest due and payable on the Loan to and including the Total Defeasance Date (provided, that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan to and including the Defeasance Date and next occurring Monthly Payment Date); (B2) all other sums, then if any, due and payable under the Note, this Loan Agreement, the Mortgage Security Instrument and the other Loan DocumentsDocuments through and including the Total Defeasance Date (or, if the Total Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (3) all escrow, closing, recording, legal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Security Instruments on the Properties, the review of the proposed Defeasance Collateral and the preparation of the Security Agreement, the Defeasance Collateral Account Agreement and related documentation; and (4) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note or the Total Defeasance Event;
(iiiC) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d2.8(c) hereof;
(ivD) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(vE) Borrower shall deliver to Lender (1) an opinion of counsel for Borrower that is customary in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (wI) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, ; (xII) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the IRS Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, ; and (zIII) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
; (vi2) If and to the extent required by the Rating Agencies, a non-consolidation opinion REMIC Opinion with respect to the Total Defeasance Event; and (3) a New Non-Consolidation Opinion with respect to Successor Borrower;
(viiF) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiiG) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.8 have been satisfied;
(ixH) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;; and
(xI) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and.
(xiii) Borrower shall pay all costs If Bxxxxxxx has elected to defease the entire Loan and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 2.8 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any each Individual Property shall be released from the lien of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases Security Instruments and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the Loan. In connection with any such the release of the Lienlien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Total Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), a release of Lien lien (and related Loan Documents) for execution by LenderLxxxxx. Such release shall be in a form appropriate in the each jurisdiction in which the Mortgaged each Individual Property is located and contain that contains standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay , together with an Officer’s Certificate certifying that such documentation (1) is in compliance with all costsLegal Requirements, taxes and expenses associated (2) will effect such release in accordance with the release terms of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ feesthis Agreement. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)Article 2, no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged PropertySecurity Instruments.
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Samples: Loan Agreement (Istar Inc.)
Total Defeasance. (i) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Prepayment Maturity Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering Security Instrument by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “"Total Defeasance”) upon Defeasance Event"), subject to the satisfaction of the following conditionsconditions precedent:
(iA) Borrower shall provide Lender at least not less than thirty (30) days’ prior written ' notice (or such shorter period of time if permitted by Lender in its sole discretion) but not more than ninety (90) days' notice specifying a date (the “"Total Defeasance Date”") on which Borrower shall have satisfied the conditions in this Section 2.7(aTotal Defeasance Event is to occur; LOAN AGREEMENT – Page 33 41458-112/Patuxent Crossing (MD) and on which it shall effect the Total Defeasance;Coliseum Marketplace (VA)
(iiB) Unless otherwise agreed to in writing by Xxxxxx, Borrower shall pay to Lender (A1) all payments of principal and interest due and payable on the Loan to and including the Total Defeasance Date (provided, that, if such Total Defeasance Date is not a Monthly Payment Date, Borrower shall also pay to Lender all payments of principal and interest due on the Loan to and including the Defeasance Date and next occurring Monthly Payment Date); (B2) all other sums, then if any, due and payable under the Note, this Loan Agreement, the Mortgage Security Instrument and the other Loan DocumentsDocuments through and including the Total Defeasance Date (or, if the Total Defeasance Date is not a Monthly Payment Date, the next occurring Monthly Payment Date); (3) all escrow, closing, recording, legal, Rating Agency and other fees, costs and expenses paid or incurred by Lender or its agents in connection with the Total Defeasance Event, the release of the lien of Security Instrument on the Property, the review of the proposed Defeasance Collateral and the preparation of the Security Agreement, the Defeasance Collateral Account Agreement and related documentation; and (4) any revenue, documentary stamp, intangible or other taxes, charges or fees due in connection with the transfer or assumption of the Note or the Total Defeasance Event;
(iiiC) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d2.8(c) hereof;
(ivD) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(vE) Borrower shall deliver to Lender (1) an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, that (wI) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, ; (xII) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 Event will not result in a deemed exchange for purposes of the IRS Code and will not adversely affect the status of the Loan Note as indebtedness for federal income tax purposes, ; and (zIII) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
; (vi2) If and to the extent required by the Rating Agencies, a non-consolidation opinion REMIC Opinion with respect to the Total Defeasance Event; and (3) a New Non-Consolidation Opinion with respect to Successor Borrower;
(viiF) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiiG) Borrower shall deliver an officer’s certificate Officer's Certificate certifying that the requirements set forth in this Section 2.7 2.8 have been satisfied;
(ixH) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance LOAN AGREEMENT – Page 34 41458-112/Patuxent Crossing (MD) and Coliseum Marketplace (VA) Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;; and
(xI) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and.
(xiii) Borrower shall pay all costs If Xxxxxxxx has elected to defease the entire Loan and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 2.8 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any the Property shall be released from the lien of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases Security Instrument and the Total Defeasance Collateral, Collateral pledged pursuant to the Security Agreement, Agreement shall be the sole source of collateral securing the Loan. In connection with any such the release of the Lienlien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Total Defeasance Date (or such shorter time as permitted by is acceptable to Lender in its sole discretion), a release of Lien lien (and related Loan Documents) for execution by LenderXxxxxx. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain that contains standard provisions protecting the rights of a the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay , together with an Officer's Certificate certifying that such documentation (1) is in compliance with all costsLegal Requirements, taxes and expenses associated (2) will effect such release in accordance with the release terms of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ feesthis Agreement. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below)Article 2, no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien lien of the Mortgage on the Mortgaged PropertySecurity Instrument.
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Total Defeasance. (a) Provided no Event of Default shall have occurred and remain uncured, Borrower shall have the right at any time after the First Open Defeasance Release Date and prior to the First Open Permitted Prepayment Date to voluntarily defease the entire Loan and obtain a release of the Lien lien of the Mortgage encumbering by providing Lender with the Mortgaged Property Total Defeasance Collateral (hereinafter, a “Total DefeasanceDefeasance Event”) upon ), subject to the satisfaction of the following conditionsconditions precedent:
(i) Borrower shall provide Lender at least thirty not less than fifteen (3015) daysBusiness Days’ prior written notice (or such shorter period of time if as may be permitted by Lender in its sole discretion) specifying a date (the “Total Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance Event is to occur. Borrower’s notice of defeasance shall create an obligation of Borrower to defease the entire Loan as set forth therein, but may be rescinded by a written notice to Lender prior to the applicable Total Defeasance Date. Borrower agrees to indemnify Lender and to hold Lender harmless from and against any and all costs and expenses Lender sustains or incurs as a consequence of any such rescission of a notice of defeasance;
(ii) Borrower shall pay to Lender (A) all payments of principal and interest due on the Loan to and including the Total Defeasance Date and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) Sections 2.5.3 and Sections 2.7(c) and (d) 2.5.4 hereof;
(iv) Borrower shall execute and deliver to Lender a Defeasance Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary standard in commercial lending transactions and subject only to normal customary qualifications, assumptions and exceptions opining, among other things, (A) that (w) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, (xB) that, if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the a Total Defeasance Event pursuant to this Section 2.7(a2.5 (assuming a “startup day” (within the meaning of Section 860G(a)(9) of the Code) that is the earlier of the actual start-up date and the date specified in clause (a) of the definition of “Release Date” contained herein), and (yC) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (z) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If and to the extent required by the Rating Agencies, a non-consolidation opinion with respect to the Successor Borrower;
(viivi) If a Securitization has occurred, Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies Agency Confirmation as to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstandingEvent;
(viiivii) Borrower shall deliver an officerOfficer’s certificate Certificate certifying that the requirements set forth in this Section 2.7 2.5 have been satisfied;
(ixviii) Borrower shall deliver a certificate of a “big four” or other nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request; and
(xi) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property from the Lien of the Mortgage and the Assignment of Leases and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretion), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of Leases, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below), no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Property.
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Total Defeasance. Borrower shall have the right at any time after the First Open Defeasance Date and prior to the First Open Prepayment Date to obtain a release of the Lien of the Mortgage encumbering the Mortgaged Property (a “Total Defeasance”) upon satisfaction of the following conditions:
(i) Borrower shall provide Lender at least thirty (30) days’ prior written notice (or such shorter period of time if permitted by Lender in its sole discretionLender) specifying a date (the “Defeasance Date”) on which Borrower shall have satisfied the conditions in this Section 2.7(a) and on which it shall effect the Total DefeasanceDefeasance (provided such notice may be revoked by Borrower, not more than twice during any three (3) year period during the term of the Loan, if: (A) such revocation is made in writing, within a reasonable period prior to such Defeasance Date; (B) such revocation is effected in accordance with any applicable servicing agreement; and (C) Borrower reimburses Lender’s costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) incurred as a result of such revocation);
(ii) Borrower shall pay to Lender Lender: (A) all payments of interest due on the Loan to and including the Defeasance Date Date; and (B) all other sums, then due under the Note, this Loan Agreement, the Mortgage and the other Loan Documents;
(iii) Borrower shall irrevocably deposit the Total Defeasance Collateral into the Defeasance Collateral Account and otherwise comply with the provisions of this Section 2.7(a) and Sections 2.7(c) and (d) hereof;
(iv) Borrower shall execute and deliver to Lender a Security Agreement in respect of the Defeasance Collateral Account and the Total Defeasance Collateral;
(v) Borrower shall deliver to Lender an opinion of counsel for Borrower that is customary in commercial lending transactions and subject only to normal qualifications, assumptions and exceptions opiningopining to any matter as then required by the Rating Agencies in connection with similar transactions and including, among other things, that that: (wA) Lender has a legal and valid perfected first priority security interest in the Defeasance Collateral Account and the Total Defeasance Collateral, ; and (xB) if a Securitization has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a “real estate mortgage investment conduit” within the meaning of Section 860D of the Code as a result of the Total Defeasance pursuant to this Section 2.7(a), (y) a Total Defeasance pursuant to this Section 2.7 will not result in a deemed exchange for purposes of the Code and will not adversely affect the status of the Loan as indebtedness for federal income tax purposes, (z) delivery of the Total Defeasance Collateral and the grant of a security interest therein to Lender shall not constitute an avoidable preference under Section 547 of the Bankruptcy Code or applicable state law;
(vi) If and to the extent required by the Rating Agencies, Borrower shall deliver to Lender a non-consolidation opinion with respect to the Successor Borrower;
(vii) Borrower shall deliver to Lender a confirmation in writing from the applicable Rating Agencies to the effect that the release of the Mortgaged Property from the Lien of the Mortgage as contemplated by this Section 2.7(a) and the substitution of the Total Defeasance Collateral will complies with all applicable Rating Agency criteria so as to not result in a downgrading, withdrawal or qualification of the respective ratings in effect immediately prior to such defeasance for the Certificates issued in connection with the Securitization which are then outstanding;
(viii) Borrower shall deliver an officer’s certificate certifying that the requirements set forth in this Section 2.7 have been satisfied;
(ix) Borrower shall deliver a certificate of a nationally recognized public accounting firm reasonably acceptable to Lender certifying that the Total Defeasance Collateral will generate monthly amounts equal to or greater than the Scheduled Defeasance Payments;
(x) Borrower shall deliver such other certificates, opinions, documents and instruments as Lender may reasonably request, provided the same do not materially increase Borrower’s obligations or decrease Borrower’s rights hereunder; and
(xi) Borrower shall pay all costs and expenses of Lender incurred in connection with the defeasance, including Lender’s reasonable attorneys’ fees and expenses and Rating Agency fees and expenses. If a Total Defeasance occurs and all of the requirements of this Section 2.7 have been satisfied, including those set forth in Section 2.7(e) below, and provided no “Event of Default” (as defined in any of the Crossed Loan Agreements) under any of the Crossed Loan Agreements exists, (i) Lender shall execute any and all documents required to release the Mortgaged Property Property, all Account Collateral and all other Collateral from the Lien of the Mortgage and the Assignment of Leases Profits and Leases, and to terminate the Local Collection Account Agreements, the Collection Account Agreement and all Direction Letters, and cause all Account Collateral held by or on behalf of Lender to be released to Borrower, and the Total Defeasance Collateral, pledged pursuant to the Security Agreement, shall be the sole source of collateral securing the Loan. In connection with any such release of the Lien, Borrower shall submit to Lender, not less than thirty (30) days prior to the Defeasance Date (or such shorter time as permitted by Lender in its sole discretionLender), a release of Lien (and related Loan Documents) for execution by Lender. Such release shall be in a form appropriate in the jurisdiction in which the Mortgaged Property is located and contain standard provisions protecting the rights of a releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Borrower shall pay all costs, taxes and expenses associated with the release of the Lien of the Mortgage and the Assignment of Profits and Leases, including Lender’s reasonable attorneys’ fees. Except as set forth in this Section 2.7(a)(or in Section 2.7(b) below), no repayment, prepayment or defeasance of all or any portion of the Loan shall cause, give rise to a right to require, or otherwise result in, the release of the Lien of the Mortgage on the Mortgaged Property.
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