MEZZANINE LOAN AGREEMENT By and among EACH OF THE ENTITIES LISTED ON SCHEDULE I ATTACHED HERETO, collectively, as Borrower, THE LENDERS FROM TIME TO TIME PARTY HERETO, collectively, as Lender, COLUMN FINANCIAL, INC., as Initial Lender, and COLUMN...
Exhibit 10.2
By and among
EACH OF THE ENTITIES LISTED ON SCHEDULE I ATTACHED HERETO,
collectively, as Borrower,
THE LENDERS FROM TIME TO TIME PARTY HERETO,
collectively, as Lender,
COLUMN FINANCIAL, INC.,
as Initial Lender,
and
COLUMN FINANCIAL, INC.,
as Agent
and
Acknowledged and Agreed to by
ARC NY120W5701 TRS Mezz, LLC,
as Equity Owner,
solely with respect to Sections 2.4.2, 2.6,
7.1, 7.2, 9.1.1, 9.2(a), 9.4(b) and 9.5 and Articles IV,
V, VI, VIII and X
Dated as of December 20, 2016
Table of Contents
Page | ||
ARTICLE I. | DEFINITIONS; PRINCIPLES OF CONSTRUCTION | 1 |
Section 1.1. | Definitions | 1 |
Section 1.2. | Principles of Construction | 39 |
ARTICLE II. | GENERAL TERMS | 41 |
Section 2.1. | Loan Commitment; Disbursement to Borrower | 41 |
Section 2.2. | Interest Rate | 41 |
Section 2.3. | Loan Payment | 47 |
Section 2.4. | Prepayments | 48 |
Section 2.5. | Release of Collateral | 50 |
Section 2.6. | Mortgage Loan Cash Management; Establishment of Certain Accounts | 53 |
Section 2.7. | Withholding Taxes | 54 |
Section 2.8. | Extension of the Initial Maturity Date | 57 |
Section 2.9. | Notes | 58 |
ARTICLE III. | INTENTIONALLY OMITTED | 59 |
ARTICLE IV. | REPRESENTATIONS AND WARRANTIES | 59 |
Section 4.1. | Borrower and Equity Owner Representations | 59 |
Section 4.2. | Survival of Representations | 73 |
ARTICLE V. | BORROWER AND EQUITY OWNER COVENANTS | 74 |
Section 5.1. | Affirmative Covenants | 74 |
Section 5.2. | Negative Covenants | 104 |
ARTICLE VI. | INSURANCE; CASUALTY; CONDEMNATION | 110 |
Section 6.1. | Insurance | 110 |
Section 6.2. | Casualty | 111 |
Section 6.3. | Condemnation | 111 |
Section 6.4. | Restoration | 112 |
Section 6.5. | References to Mortgage Borrower in this Article VI | 112 |
ARTICLE VII. | RESERVE FUNDS | 112 |
Section 7.1. | Reserve Funds | 112 |
Section 7.2. | Reserve Funds, Generally | 113 |
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Table of Contents
(continued)
Page | ||
Section 7.3. | Letters of Credit | 114 |
ARTICLE VIII. | DEFAULTS | 115 |
Section 8.1. | Event of Default | 115 |
Section 8.2. | Remedies | 120 |
Section 8.3. | Remedies Cumulative; Waivers | 122 |
ARTICLE IX. | SPECIAL PROVISIONS | 122 |
Section 9.1. | Securitization | 122 |
Section 9.2. | Securitization Indemnification | 126 |
Section 9.3. | Agent | 130 |
Section 9.4. | No Exculpation | 132 |
Section 9.5. | Matters Concerning Manager | 133 |
Section 9.6. | Servicer | 134 |
Section 9.7. | Intercreditor Agreement | 134 |
ARTICLE X. | MISCELLANEOUS | 135 |
Section 10.1. | Survival | 135 |
Section 10.2. | Lender’s Discretion | 135 |
Section 10.3. | Governing Law | 135 |
Section 10.4. | Modification, Waiver in Writing | 137 |
Section 10.5. | Delay Not a Waiver | 137 |
Section 10.6. | Notices | 137 |
Section 10.7. | Trial by Jury | 138 |
Section 10.8. | Headings | 138 |
Section 10.9. | Severability | 138 |
Section 10.10. | Preferences | 139 |
Section 10.11. | Waiver of Notice | 139 |
Section 10.12. | Remedies of Borrower and Equity Owner | 139 |
Section 10.13. | Expenses; Indemnity | 140 |
Section 10.14. | Schedules Incorporated | 141 |
Section 10.15. | Offsets, Counterclaims and Defenses | 141 |
Section 10.16. | No Joint Venture or Partnership; No Third Party Beneficiaries | 141 |
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Table of Contents
(continued)
Page | ||
Section 10.17. | Publicity | 142 |
Section 10.18. | Cross Default; Cross Collateralization; Waiver of Marshalling of Assets | 142 |
Section 10.19. | Waiver of Counterclaim | 142 |
Section 10.20. | Conflict; Construction of Documents; Reliance | 142 |
Section 10.21. | Brokers and Financial Advisors | 143 |
Section 10.22. | Prior Agreements | 143 |
Section 10.23. | Joint and Several Liability | 143 |
Section 10.24. | Counterparts | 143 |
Section 10.25. | Cumulative Rights | 143 |
Section 10.26. | Reliance on Third Parties | 143 |
Section 10.27. | Consent of Holder | 144 |
Section 10.28. | Certain Additional Rights of Lender (VCOC) | 144 |
Section 10.29. | EU Bail-in Requirements | 144 |
Section 10.30. | Contributions and Waivers | 145 |
Section 10.31. | Additional Provisions | 147 |
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SCHEDULES
Schedule I – Borrower
Schedule II – Mortgage Borrower
Schedule III – Properties
Schedule IV – Rent Rolls
Schedule V – Organizational Structure
Schedule VI – Litigation
Schedule VII – Allocated Loan Amounts
Schedule VIII – Managers and Management Agreements
Schedule IX – Condominium Documents, Board Members, Common Charges and Units of Borrower
Schedule X – Collective Bargaining Agreements
Schedule XI – Property Condition Reports and Environmental Reports
Schedule XII – Required Repairs Deadlines for Completion
Schedule XIII – O&M Programs
Schedule XIV – Pre-Approved Managers
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THIS MEZZANINE LOAN AGREEMENT, dated as of December 20, 2016 (as amended, restated, replaced, supplemented or otherwise modified from time to time, this “Agreement”), by and among EACH OF THE ENTITIES LISTED ON SCHEDULE I ATTACHED HERETO, each a Delaware limited liability company, having its principal place of business at c/o New York REIT, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (each, an “Individual Borrower” and collectively, “Borrower”), COLUMN FINANCIAL, INC., a Delaware corporation, having an address at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (together with its successors and permitted assigns, “Initial Lender”), THE LENDERS FROM TIME TO TIME PARTY HERETO (collectively, with Initial Lender, and together with their respective successors and permitted assigns, “Lender”) and COLUMN FINANCIAL, INC., a Delaware corporation, having an address at 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as agent for Lender (together with its successors and permitted assigns, in such capacity, “Agent”), and acknowledged and agreed to by ARC NY120W5701 TRS Mezz, LLC, a Delaware limited liability company, having its principal place of business at c/o New York REIT, Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (“Equity Owner”) (solely with respect to Sections 2.4.2, 2.6, 7.1, 7.2, 9.1.1, 9.2(a), 9.4(b) and 9.5 and Articles IV, V, VI, VIII and X hereof).
WHEREAS, Borrower desires to obtain the Loan (as hereinafter defined) from Lender; and
WHEREAS, Lender is willing to make the Loan to Borrower, subject to and in accordance with the terms of this Agreement and the other Loan Documents (as hereinafter defined).
NOW THEREFORE, in consideration of the making of the Loan by Lender and the covenants, agreements, representations and warranties set forth in this Agreement, the parties hereto hereby covenant, agree, represent and warrant as follows:
ARTICLE I.
DEFINITIONS; PRINCIPLES OF CONSTRUCTION
Section 1.1. Definitions. For all purposes of this Agreement, except as otherwise expressly required or unless the context clearly indicates a contrary intent:
“000 Xxxxxxxx Xxxxxx Property” shall mean the Individual Property located at 000 Xxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
“Acceptable Condominium Policy” shall have the meaning set forth in Section 6.1(g) hereof.
“Acceptable Counterparty” shall mean a counterparty to the Interest Rate Cap Agreement (or the guarantor of such counterparty’s obligations) that (a) has and shall maintain, until the expiration of the applicable Interest Rate Cap Agreement, (i) a long-term unsecured debt rating of not less than “A-” by S&P and a short-term senior unsecured debt rating of at least “A-1” from S&P, and (ii)(x) a long-term unsecured debt rating of not less than “A3” from Xxxxx’x and a short-term senior unsecured debt rating of at least “P1” from Xxxxx’x or (y) if no short-term debt rating exists, a long-term senior unsecured debt rating of at least “A1” from Xxxxx’x, or (b) is otherwise acceptable to the Approved Rating Agencies, as evidenced by a Rating Agency Confirmation to the effect that such counterparty shall not cause a downgrade, withdrawal or qualification of the ratings assigned, or to be assigned, to the Securities or any class thereof in any Securitization.
“Affiliate” shall mean, as to any Person, any other Person that, directly or indirectly, is in Control of, is Controlled by or is under common Control with such Person or is a director or officer of such Person or of an Affiliate of such Person.
“Affiliated Manager” shall mean any Manager in which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, or any Guarantor has, directly or indirectly, any legal, beneficial or economic interest.
“Agent” shall have the meaning set forth in the introductory paragraph hereto.
“Allocated Loan Amount” shall mean, for the applicable Release Collateral with respect to an Individual Property, the amount set forth of Schedule VII attached hereto.
“ALTA” shall mean American Land Title Association, or any successor thereto.
“Annual Budget” shall mean the operating budget, including all anticipated Operating Expenses and planned Capital Expenditures, for the Properties prepared by Mortgage Borrower and/or Operating Lessee in accordance with Section 5.1.11(d) hereof for the applicable Fiscal Year or other period.
“Applicable Contribution” shall have the meaning set forth in Section 10.30(f) hereof.
“Appraisal” means, with respect to each Individual Property, an as-is appraisal of such Property that is prepared by a member of the Appraisal Institute selected by Mortgage Lender in its reasonable discretion, meets the minimum appraisal standards for national banks promulgated by the Comptroller of the Currency pursuant to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended (FIRREA) and complies with the Uniform Standards of Professional Appraisal Practice (USPAP).
“Approved Annual Budget” shall have the meaning set forth in Section 5.1.11(e) hereof.
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“Approved Rating Agencies” shall mean each of S&P, Moody’s, Fitch, DBRS and Morningstar or any other nationally-recognized statistical rating agency which, in each case, has been reasonably approved by Lender and designated by Lender to assign a rating to the Securities.
“Assignment of Interest Rate Cap Agreement” shall have the meaning set forth in Section 2.2.8(a) hereof.
“Assignment of Management Agreement” shall have the meaning set forth in the Mortgage Loan Agreement.
“Award” shall mean any compensation paid by any Governmental Authority in connection with a Condemnation.
“Bail-In Action” means the exercise of any Write-down and Conversion Powers.
“Bail-In Legislation” means in relation to an EEA Member Country which has implemented, or which at any time implements, Article 55 of Directive 2014/59/EU (as amended or re-enacted or successor thereto) establishing a framework for the recovery and resolution of credit institutions and investment firms, the relevant implementing law or Regulation as described in the EU Bail-In Legislation Schedule from time to time.
“Bankruptcy Action” shall mean with respect to any Person (a) such Person filing a voluntary petition under the Bankruptcy Code or any other Federal, state or local bankruptcy or insolvency law; (b) the filing of an involuntary petition against such Person under the Bankruptcy Code or any other Federal, state or local bankruptcy or insolvency law or soliciting or causing to be solicited petitioning creditors for any involuntary petition against such Person; (c) such Person filing an answer consenting to or otherwise acquiescing in or joining in any involuntary petition filed against it, by any other Person under the Bankruptcy Code or any other Federal, state, local or foreign bankruptcy or insolvency law; (d) such Person consenting to or acquiescing in or joining in an application for the appointment of a custodian, receiver, trustee, or examiner for such Person or any portion of any Individual Property or the Collateral; or (e) such Person making an assignment for the benefit of creditors, or admitting, in writing or in any legal proceeding, its insolvency or inability to pay its debts as they become due or (f) to take action in furtherance of any of the foregoing.
“Bankruptcy Code” shall mean Title 1 of the United States Code, 11 U.S.C. §101, et seq., as the same may be amended from time to time, and any successor statute or statutes and all rules and regulations from time to time promulgated thereunder, and any comparable foreign laws relating to bankruptcy, insolvency or creditors’ rights or any other Federal, state, local or foreign bankruptcy or insolvency law.
“Basic Carrying Costs” shall have the meaning set forth in the Mortgage Loan Agreement.
“Benefit Amount” shall have the meaning set forth in Section 10.30(d) hereof.
“Board” shall mean any managing board or board of directors for the applicable Condominium as set forth in the Condominium Documents.
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“Borrower” shall have the meaning set forth in the introductory paragraph hereto, together with their respective successors and permitted assigns.
“Breakage Costs” shall have the meaning set forth in Section 2.2.4(h) hereof.
“Business Day” shall mean any day other than a Saturday, Sunday or any other day on which national banks in New York, New York, or the place of business of the trustee under a Securitization (or, if no Securitization has occurred, any Lender or Agent), or any Servicer or the financial institution that maintains any collection account for or on behalf of any Servicer or any Reserve Funds or the New York Stock Exchange or the Federal Reserve Bank of New York is not open for business.
“Capital Expenditures” shall have the meaning set forth in the Mortgage Loan Agreement.
“Cash Management Agreement” shall have the meaning set forth in the Mortgage Loan Agreement.
“Casualty” shall have the meaning set forth in Section 6.2 hereof.
“Cause” shall mean, with respect to an Independent Director, (a) acts or omissions by such Independent Director that constitute systematic and persistent or willful disregard of such Independent Director’s duties, (b) such Independent Director has been indicted or convicted for any crime or crimes of moral turpitude or dishonesty or for any violation of any Legal Requirements, (c) such Independent Director no longer satisfies the requirements set forth in the definition of “Independent Director”, (d) the fees charged for the services of such Independent Director are materially in excess of the fees charged by the other providers of Independent Directors listed in the definition of “Independent Director” or (e) any other reason for which the prior written consent of Lender shall have been obtained.
“CBA Multiemployer Plans” shall mean multi-employer pension and welfare plans to which an employer is obligated to contribute pursuant to the terms of the collective bargaining agreement set forth on Schedule X attached hereto.
“Closing Date” shall mean the date of the funding of the Loan.
“Co-Lender” shall mean Lender and each successor or assign of Lender that holds a Note, in each case, together with their respective successors and assigns.
“Co-Lender Agreement” shall mean that certain Agency and Co-Lender Agreement, dated as of the Closing Date, by and between Agent and Initial Lender, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Code” shall mean the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time, and any successor statutes thereto, and applicable U.S. Department of Treasury regulations issued pursuant thereto in temporary or final form.
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“Collateral” shall mean “Collateral” as such term is defined in the Pledge Agreement and any and all other property or collateral in which Lender is granted a security interest under any of the Loan Documents, in each case whether existing on the date hereof or hereafter pledged or assigned to Lender.
“Column” shall have the meaning set forth in Section 9.3(a) hereof.
“Common Charges” shall have the meaning set forth in Section 4.1.44(d) hereof.
“Condemnation” shall mean a temporary or permanent taking by any Governmental Authority as the result or in lieu or in anticipation of the exercise of the right of condemnation or eminent domain, of all or any part of any Individual Property, or any interest therein or right accruing thereto, including any right of access thereto or any change of grade affecting such Individual Property or any part thereof.
“Condominium” shall have the meaning set forth in the Condominium Documents.
“Condominium Documents” shall mean those certain documents set forth on Schedule IX attached hereto, as each of the same may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms and conditions of this Agreement.
“Contribution” shall have the meaning set forth in Section 10.30(a) hereof.
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise. “Controlled” and “Controlling” shall have correlative meanings.
“Controlling Equityholder” shall have the meaning set forth in Section 4.1.35 hereof.
“Covered Disclosure Information” shall have the meaning set forth in Section 9.2(b) hereof.
“Covered Rating Agency Information” shall have the meaning set forth in Section 9.2(d) hereof.
“Credit Card Direction Letter” shall have the meaning set forth in Section 6.2.1(b) hereof.
“Credit Suisse” shall mean Credit Suisse Securities (USA) LLC and its successors in interest.
“DBRS” means DBRS, Inc., and its successors-in-interest.
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“Debt” shall mean the outstanding principal amount set forth in, and evidenced by, this Agreement and the Note together with all interest accrued and unpaid thereon and all other sums (including, but not limited to, any Breakage Costs) due to Lender in respect of the Loan under the Note, this Agreement, the Pledge Agreement or any other Loan Document.
“Debt Service” shall mean, with respect to any particular period of time, scheduled interest payments due under this Agreement and the Note.
“Debt Service Coverage Ratio” shall have the meaning set forth in the Mortgage Loan Agreement.
“Debt Yield” shall have the meaning set forth in the Mortgage Loan Agreement.
“Default” shall mean the occurrence of any event hereunder or under any other Loan Document which, but for the giving of notice or passage of time, or both, would be an Event of Default.
“Default Rate” shall mean a rate per annum equal to the lesser of (a) the Maximum Legal Rate and (b) four percent (4%) above the Interest Rate.
“Determination Date” shall mean, with respect to each Interest Period, the date that is two (2) London Business Days prior to the twenty-second (22nd) day of the calendar month in which such Interest Period commences.
“Disclosure Document” shall mean, collectively, any written materials used or provided to Lender, any prospective investors and/or the Rating Agencies in connection with any public offering or private placement in connection with a Securitization (including, without limitation, a prospectus, prospectus supplement, private placement memorandum, offering memorandum, offering circular, term sheet, road show presentation materials or other similar offering documents, marketing materials or written information provided to prospective investors), in each case in preliminary or final form and including any amendments, supplements, exhibits, annexes and other attachments thereto.
"EEA Financial Institution" means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any member states of the European Union, Iceland, Liechtenstein and Norway.
“Eligible Account” shall mean a separate and identifiable account from all other funds held by the holding institution that is either (a) an account or accounts (or subaccounts thereof) maintained with a federal or state-chartered depository institution or trust company which complies with the definition of Eligible Institution or (b) a segregated trust account or accounts (or subaccounts thereof) maintained with a federal or state chartered depository institution or trust company acting in its fiduciary capacity which complies with the definition of Eligible Institution and which, in the case of a state chartered depository institution or trust company, is subject to regulations substantially similar to 12 C.F.R. § 9.10(b), having in either case a combined capital and surplus of at least $50,000,000 and subject to supervision or examination by federal and state authority, as applicable. An Eligible Account will not be evidenced by a certificate of deposit, passbook or other instrument.
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“Eligible Institution” shall mean either (i) a depository institution or trust company insured by the Federal Deposit Insurance Corporation, the short-term unsecured debt obligations or commercial paper of which are rated at least “A-1+” by S&P and “P-1” by Xxxxx’x in the case of accounts in which funds are held for thirty (30) days or less (or, in the case of letters of credit and accounts in which funds are held for more than thirty (30) days, the long-term unsecured debt obligations of which are rated at least “A+” by S&P and “Aa3” by Xxxxx’x) or (ii) KeyBank, National Association in its capacity as a party to the Cash Management Agreement for so long as KeyBank, National Association is not downgraded from the long term unsecured debt obligations and short term unsecured debt obligations ratings assigned to KeyBank, National Association by the Approved Rating Agencies as of the Closing Date.
“Embargoed Person” shall mean any person, entity or government subject to trade restrictions under U.S. law, including, but not limited to, The USA PATRIOT Act (including the anti-terrorism provisions thereof), the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701, et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any Executive Orders or regulations promulgated thereunder including those related to Specially Designated Nationals and Specially Designated Global Terrorists, with the result that the investment in Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor or Guarantor, as applicable (whether directly or indirectly), is prohibited by law or the Loan made by the Lender is in violation of law.
“Employment Related Laws and Obligations” shall mean all federal, state and local laws, regulations, ordinances, common law, orders, judgments, decrees, awards, collective bargaining agreements, CBA Multiemployer Plans, or the findings of any arbitrator, court or governmental entity, relating to, touching upon or concerning the employment of the employees who perform work in connection with the operation of the Property, including relating to the hiring, firing and treatment of employees, or any legal obligation or duty regarding employment practices, terms and conditions of employment, equal opportunity, non-discrimination, discharge, immigration, anti-harassment, anti-retaliation, whistle blowing, compensation, wages, overtime payments, hours, benefits, collective bargaining, income tax withholding, the payment of social security and other similar payroll taxes, pension plans, the modification or termination of benefit plans and retiree health insurance plans, policies, programs and agreements, occupational safety and health, workers compensation or other similar benefits and payments on account of occupational illness and injuries, employment contracts, collective bargaining agreements, grievances originating under the collective bargaining agreements, wrongful discharge, torts related to the workplace such as invasion of privacy, infliction of emotional distress, defamation, and slander.
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“Environmental Indemnity” shall mean that certain Mezzanine Environmental Indemnity Agreement, dated as of the date hereof, executed by Borrower and Guarantor in connection with the Loan for the benefit of Agent, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Environmental Law” shall have the meaning set forth in the Environmental Indemnity.
“Environmental Reports” shall mean each environmental site assessment report delivered to Lender in connection with the closing of the Loan, satisfactory in form and substance to Lender.
“Equipment” shall mean, with respect to each Individual Property, any equipment now owned or hereafter acquired by Mortgage Borrower, and which (i) is used at or in connection with the Improvements or such Individual Property or (ii) is located thereon or therein, including (without limitation) all machinery, equipment, furnishings, and electronic data-processing and other office equipment now owned or hereafter acquired by Mortgage Borrower and any and all additions, substitutions and replacements of any of the foregoing), together with all attachments, components, parts, equipment and accessories installed thereon or affixed thereto.
“Equity Owner” shall have the meaning set forth in the introductory paragraph hereto, together with its successors and permitted assigns.
“Equity Purchase” shall have the meaning set forth in the Mortgage Loan Agreement.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and the rulings issued thereunder.
“ERISA Affiliate” shall mean any Person that for purposes of Title IV of ERISA is a member of the Mortgage Borrower’s, Borrower’s, Equity Owner’s, Operating Lessee Pledgor’s, Operating Lessee’s or Guarantor’s controlled group, under common control with the Mortgage Borrower, Borrower, Equity Owner, Operating Lessee Pledgor, Operating Lessee or Guarantor, within the meaning of Section 414 of the Code.
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“ERISA Event” shall mean, with respect to Mortgage Borrower, Operating Lessee, Borrower, Equity Owner, Guarantor, Operating Lessee Pledgor, any ERISA Affiliate thereof or the Property, (a) the occurrence with respect to a Plan of a reportable event, within the meaning of Section 4043 of ERISA, unless the 30-day notice requirement with respect thereto has been waived by the Pension Benefit Guaranty Corporation (or any successor) (“PBGC”); (b) the application for a minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any Plan of a notice of intent to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including any such notice with respect to a plan amendment referred to in Section 4041(e) of ERISA); (d) the cessation of operations at a facility of the Mortgage Borrower, Operating Lessee, Borrower, Equity Owner, Guarantor, Operating Lessee Pledgor, or any ERISA Affiliates in the circumstances described in Section 4062(e) of ERISA, which could reasonably be expected to result in liability under Section 4063 or 4064 of ERISA; (e) the withdrawal by the Mortgage Borrower, Operating Lessee, Borrower, Equity Owner, Guarantor, Operating Lessee Pledgor, or any ERISA Affiliates from a Multiple Employer Plan during a plan year for which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions set forth in Section 430(k) of the Code or Section 303(k)(1)(A) and (B) of ERISA to the creation of a lien upon property or assets or rights to property or assets of the Mortgage Borrower, Operating Lessee, Borrower, Equity Owner, Guarantor, Operating Lessee Pledgor, or any ERISA Affiliates for failure to make a required payment to a Plan are satisfied; (g) the termination of a Plan by the PBGC pursuant to Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of ERISA that constitutes grounds for the termination of, or the appointment of a trustee to administer, a Plan; (h) any failure by any Plan to satisfy the minimum funding standards, within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA, whether or not waived; (i) the determination that any Plan is or is expected to be in “at-risk” status, within the meaning of Section 430 of the Code or Section 303 of ERISA or (j) the receipt by the Mortgage Borrower, Operating Lessee, Borrower, Equity Owner, Guarantor, Operating Lessee Pledgor, or any ERISA Affiliate of any notice concerning the imposition of liability with respect to the withdrawal or partial withdrawal from a Multiemployer Plan or a determination that a Multiemployer Plan is, or is expected to be “insolvent” (within the meaning of Section 4245 of ERISA) or in “endangered” or “critical status” (within the meaning of Section 432 of the Code or Section 305 of ERISA).
“EU Bail-In Legislation Schedule” means the document described as such and published by the Loan Market Association (or any successor person) from time to time.
“Event of Default” shall have the meaning set forth in Section 8.1(a) hereof.
“Exchange Act” shall have the meaning set forth in Section 9.2(a) hereof.
“Exchange Act Filing” shall mean a filing pursuant to the Exchange Act in connection with or relating to a Securitization.
“Excluded Taxes” shall mean any of the following Impositions imposed on or with respect to Lender or required to be withheld or deducted from a payment to Lender: (a) Impositions imposed on or measured by net income (however denominated), franchise Impositions, and branch profits Impositions, in each case, (i) imposed as a result of Lender being organized under the laws of, or having its principal office or its applicable lending office located in, the jurisdiction imposing such Imposition (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) U.S. federal withholding Impositions imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in the Loan pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.7 hereof, amounts with respect to such Impositions were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Impositions attributable to such Lender’s failure to comply with Section 2.7(e) and (d) any U.S. federal withholding Impositions imposed under FATCA.
“Extended Maturity Date” shall mean December 20, 2018.
“Extension Option” shall have the meaning set forth in Section 2.8 hereof.
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“Extension Term” shall have the meaning set forth in Section 2.8 hereof.
“Extraordinary Expense” shall have the meaning set forth in Section 5.1.11(f) hereof.
“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future Treasury regulations thereunder, published guidance with respect thereto, any agreement entered into pursuant to Section 1471(b)(1) of the Code and any intergovernmental agreements or official interpretations thereof (including any Revenue Ruling, Revenue Procedure, Notice or similar guidance issued by the Internal Revenue Service thereunder).
“FF&E” shall mean, with respect to the Viceroy Property, collectively, furnishings, Fixtures and Equipment located in the guest rooms, hallways, lobbies, restaurants, lounges, meeting and banquet rooms, parking facilities, public areas or otherwise in any portion of the Viceroy Property, including (without limitation) all beds, chairs, bookcases, tables, carpeting, drapes, couches, luggage carts, luggage racks, bars, bar fixtures, radios, television sets, intercom and paging equipment, electric and electronic equipment, heating, lighting and plumbing fixtures, fire prevention and extinguishing apparatus, cooling and air-conditioning systems, elevators, escalators, stoves, ranges, refrigerators, laundry machines, tools, machinery, boilers, incinerators, switchboards, conduits, compressors, vacuum cleaning systems, floor cleaning, waxing and polishing equipment, cabinets, lockers, shelving, dishwashers, garbage disposals, washer and dryers, and all other customary hotel equipment and other tangible property in each of the foregoing cases owned by Mortgage Borrower, or in which Mortgage Borrower or has or shall have an interest, now or hereafter located at the Viceroy Property and useable in connection with the present or future operation and occupancy of the Viceroy Property; provided, however, that FF&E shall not include (a) fixed asset supplies, including, but not limited to, linen, china, glassware, tableware, uniforms, other hotel inventory and similar items, whether used in connection with public space or guest rooms, or (b) items owned by tenants or by third party operators.
“FF&E Reserve Fund” shall have the meaning set forth in the Mortgage Loan Agreement.
“Fiscal Quarter” shall mean the three-month period ending on March 31, June 30, September 30 and December 31 of each calendar year.
“Fiscal Year” shall mean each twelve (12) month period commencing on January 1 and ending on December 31 during each year of the term of the Loan.
“Fitch” shall mean Fitch, Inc.
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“Fixtures” shall mean, with respect to each Individual Property, all Equipment now owned, or the ownership of which is hereafter acquired, by Mortgage Borrower which is so related to the Land and the Improvements forming part of the Individual Property in question that it is deemed fixtures or real property under applicable Legal Requirements, including, without limitation, all building or construction materials intended for construction, reconstruction, alteration, decoration or repair of or installation on the applicable Individual Property, construction equipment, appliances, machinery, plant equipment, fittings, apparatuses, fixtures and other items now or hereafter attached to, installed in or used in connection with (temporarily or permanently) any of the Improvements or the Land, including, but not limited to, engines, devices for the operation of pumps, pipes, plumbing, call and sprinkler systems, fire extinguishing apparatuses and equipment, heating, ventilating, incinerating, electrical, air conditioning and air cooling equipment and systems, gas and electric machinery, appurtenances and equipment, pollution control equipment, security systems, disposals, dishwashers, refrigerators and ranges, recreational equipment and facilities of all kinds, and water, electrical, storm and sanitary sewer facilities, utility lines and equipment (whether owned individually or jointly with others, and, if owned jointly, to the extent of Mortgage Borrower’s interest therein) and all other utilities whether or not situated in easements, all water tanks, water supply, water power sites, fuel stations, fuel tanks, fuel supply, and all other structures, together with all accessions, appurtenances, additions, replacements, betterments and substitutions or any of the foregoing and the proceeds thereof.
“Floating Interest Rate” shall mean a fluctuating rate per annum equal to LIBOR plus the Spread.
“Floating Interest Rate Loan” shall mean the Loan at such time as the interest thereon accrues at a rate of interest based on the Floating Interest Rate.
“Foreign Benefit Arrangement” shall mean any agreement, contract, program, undertaking, understanding or other arrangement that, if in the form of a plan or a fund, would be a Foreign Plan.
“Foreign Lender” shall mean a Lender that is not a U.S. Person.
“Foreign Plan” shall mean any plan or fund (including, without limitation, any superannuation fund) established, contributed to (regardless of whether through direct contributions or through employee withholding) or maintained outside the United States by the Mortgage Borrower, Borrower, Guarantor or one or more of their respective subsidiaries primarily for the benefit of employees of the Mortgage Borrower, Borrower, Guarantor or such subsidiaries residing outside the United States, which plan or fund provides, or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which plan is not subject to ERISA or the Code.
“Funding Borrower” shall have the meaning set forth in Section 10.30(c) hereof.
“GAAP” shall mean generally accepted accounting principles in the United States of America as of the date of the applicable financial report.
“Governmental Authority” shall mean any court, board, agency, commission, office or other authority of any nature whatsoever for any governmental xxxx (xxxxxxx, xxxxx, xxxxxx, xxxxxxxx, xxxxxxxxx, xxxx or otherwise) whether now or hereafter in existence.
“Gross Income from Operations” shall have the meaning set forth in the Mortgage Loan Agreement.
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“Ground Lease” shall mean, with respect to the Viceroy Property, that certain Ground Lease, dated as of January 25, 2008, between AREP FIFTY-SEVENTH LLC, as ground lessee, and Ricland, L.L.C., as ground lessor, as amended by that certain First Amendment to Ground Lease, dated as of June 15, 2010, by and between Ricland, L.L.C. and AREP FIFTY-SEVENTH LLC, that certain Possession Date Agreement, dated as of July 1, 2010, by and between Ricland, L.L.C. and AREP FIFTY-SEVENTH LLC and that certain Second Amendment to Ground Lease, dated as of September 16, 2013, by and between Ricland, L.L.C. and AREP FIFTY-SEVENTH LLC, as assigned and assumed by that certain Assignment and Assumption of Ground Lease made by AREP FIFTY-SEVENTH LLC, as assignor, to ARC NY120W5701, LLC, as assignee, dated as of November 18, 2013 and recorded on November 22, 2013 in the Office of the City Register of the City of New York (the “City Register”) as CRFN 2013000483478, as evidenced by that certain Memorandum dated as of July 1, 2010 and recorded on July 29, 2010 in the City Register as CRFN 2010000254160 and that certain Amended and Restated Memorandum dated as of September 16, 2013, not yet recorded in the City Register, and including any estoppel certificate issued by Ground Lessor for the benefit of Lender with respect thereto, as the same may be further amended, restated, replaced or otherwise modified from time to time, in accordance with the terms hereof.
“Ground Lessor” shall mean the lessor under the Ground Lease.
“Ground Rent” shall have the meaning set forth in the Mortgage Loan Agreement.
“Guarantor” shall mean New York REIT, Inc., a Maryland corporation.
“Guarantor Financial Covenants” shall have the meaning set forth in the Guaranty.
“Guaranty” shall mean that certain Mezzanine Guaranty Agreement, dated as of the date hereof, from Guarantor to Agent, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Hazardous Substances” shall have the meaning set forth in the Environmental Indemnity.
“Impositions” shall have the meaning set forth in Section 2.7(a) hereof.
“Improvements” shall have the meaning set forth in the granting clause of the related Security Instrument with respect to each Individual Property.
“Indebtedness” of a Person, at a particular date, shall mean the sum (without duplication) at such date of (a) all indebtedness or liability of such Person (including, without limitation, amounts for borrowed money and indebtedness in the form of mezzanine debt or preferred equity); (b) obligations evidenced by bonds, debentures, notes, or other similar instruments; (c) obligations for the deferred purchase price of property or services (including trade obligations); (d) obligations under letters of credit; (e) obligations under acceptance facilities; (f) all guaranties, endorsements (other than for collection or deposit in the ordinary course of business) and other contingent obligations to purchase, to provide funds for payment, to supply funds, to invest in any Person or entity, or otherwise to assure a creditor against loss; and (g) obligations secured by any Liens, whether or not the obligations have been assumed.
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“Indemnified Liabilities” shall have the meaning set forth in Section 10.13(b) hereof.
“Indemnified Parties” shall mean Agent, Lender, any Affiliate of Lender that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of Lender that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co placement agents or co initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Security Exchange Act, any Person who is or will have been involved in the origination of the Loan, any Person who is or will have been involved in the servicing of the Loan secured hereby, any Person in whose name the encumbrance created by the Pledge Agreement is or will have been recorded, any Person who may hold or acquire or will have held a full or partial direct interest in the Loan secured hereby (including, but not limited to, investors in the Securities, as well as custodians, trustees and other fiduciaries who hold or have held a full or partial direct interest in the Loan secured hereby for the benefit of third parties) as well as the respective directors, officers, shareholders, partners, employees, agents, representatives involved in the origination of the Loan, contractors involved in the origination of the Loan, affiliates, subsidiaries, successors and assigns of any and all of the foregoing (including, but not limited to, any other Person who holds or acquires a full or partial direct interest in the Loan, whether during the term of the Loan or as a part of a foreclosure of the Loan and including, but not limited to any successors by merger, consolidation or acquisition of all or a substantial portion of Lender’s assets and business).
“Indemnified Taxes” shall mean (a) Impositions, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.
“Indemnifying Person” shall mean each of Borrower and Guarantor.
“Independent Director” or “Independent Manager” shall mean an individual who has prior experience as an independent director, independent manager or independent member with at least three years of employment experience and who is provided by CT Corporation, Corporation Service Company, National Registered Agents, Inc., Wilmington Trust Company, Xxxxxxx Management Company, Lord Securities Corporation or, if none of those companies is then providing professional Independent Directors, another nationally-recognized company reasonably approved by Lender, in each case that is not an Affiliate of Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, Equity Owner or Borrower and that provides professional Independent Directors and other corporate services in the ordinary course of its business, and which individual is duly appointed as an Independent Director and is not, and has never been, and will not while serving as Independent Director be, any of the following:
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(a) a member, partner, equityholder, manager, director, officer or employee of Mortgage Borrower or Borrower or any of their respective equityholders or Affiliates (other than serving as an Independent Director of Borrower or an Affiliate of Mortgage Borrower or Borrower that is not in the direct chain of ownership of Mortgage Borrower or Borrower and that is required by a creditor to be a single purpose bankruptcy remote entity, provided that such Independent Director is employed by a company that routinely provides professional Independent Directors or managers in the ordinary course of its business);
(b) a creditor, supplier or service provider (including provider of professional services) to Mortgage Borrower or Borrower or any of their respective equityholders or Affiliates (other than a nationally-recognized company that routinely provides professional Independent Directors and other corporate services to Mortgage Borrower or Borrower or any of their respective Affiliates in the ordinary course of its business);
(c) a family member of any such member, partner, equityholder, manager, director, officer, employee, creditor, supplier or service provider; or
(d) a Person that controls (whether directly, indirectly or otherwise) any of (a), (b) or (c) above.
A natural person who otherwise satisfies the foregoing definition and satisfies subparagraph (a) by reason of being the Independent Director of a “special purpose entity” affiliated with Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, Equity Owner or Borrower shall be qualified to serve as an Independent Director of Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, Equity Owner or Borrower, provided that the fees that such individual earns from serving as an Independent Director of affiliates of Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, Equity Owner or Borrower in any given year constitute in the aggregate less than five percent (5%) of such individual’s annual income for that year. For purposes of this paragraph, a “special purpose entity” is an entity, whose organizational documents contain restrictions on its activities and impose requirements intended to preserve such entity’s separateness that are substantially similar to those contained in the definition of Special Purpose Entity of this Agreement.
“Individual Borrower” shall have the meaning set forth in the introductory paragraph hereto, together with its successors and permitted assigns.
“Individual Property” shall mean each parcel of real property set forth on Schedule III attached hereto, the Improvements thereon and all personal property owned by a Mortgage Borrower (or leased pursuant to the Ground Lease or the Master Lease) and encumbered by the applicable Security Instruments, together with all rights pertaining to such property and Improvements, as more particularly described in the Granting Clauses of each Security Instrument and referred to therein as the “Property”.
“Initial Lender” shall have the meaning set forth in the introductory paragraph hereto.
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“Initial Maturity Date” shall mean December 20, 2017 or such earlier date on which the final payment of the Note becomes due and payable as therein or herein provided whether at such stated maturity date, by declaration of acceleration, or otherwise.
“Insurance Premiums” shall have the meaning set forth in the Mortgage Loan Agreement.
“Insurance Proceeds” shall have the meaning set forth in the Mortgage Loan Agreement.
“Intellectual Property” shall have the meaning set forth in Section 4.1.45(b) hereof.
“Intercreditor Agreement” shall mean that certain Intercreditor Agreement, dated as of the Closing Date, by and between Agent and Mortgage Agent, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Interest Period” shall mean, in connection with the calculation of interest accrued with respect to any specified Payment Date, including the Maturity Date, the period commencing on and including the twentieth (20th) day of the prior calendar month and ending on and including the nineteenth (19th) day of the calendar month in which such Payment Date occurs. The Interest Period for the Payment Date on January 20, 2017 shall be the period commencing on the Closing Date and ending on and including January 19, 2017.
“Interest Rate” shall mean the rate at which the outstanding principal amount of the Loan bears interest from time to time in accordance with Section 2.2.4 hereof.
“Interest Rate Cap Agreement” shall mean, collectively, one or more interest rate protection agreements (together with the confirmation and schedules relating thereto) reasonably acceptable to Lender, between an Acceptable Counterparty and Borrower obtained by Borrower as and when required pursuant to Section 2.2.8 and Section 2.8 hereof. After delivery of a Replacement Interest Rate Cap Agreement to Lender, the term “Interest Rate Cap Agreement” shall be deemed to mean such Replacement Interest Rate Cap Agreement and such Replacement Interest Rate Cap Agreement shall be subject to all requirements applicable to the Interest Rate Cap Agreement.
“Issuing Bank” shall mean a bank or other financial institution which has a minimum long-term unsecured debt rating of at least “A-” by S&P, “A3” by Moody’s or equivalent ratings from other Approved Rating Agencies.
“Lease” shall mean any lease, sublease or subsublease, letting, license, concession or other agreement (whether written or oral and whether now or hereafter in effect) pursuant to which any Person is granted a possessory interest in, or right to use or occupy all or any portion of any space in any Individual Property by or on behalf of any Mortgage Borrower or Operating Lessee (other than the Ground Lease, Master Lease and Operating Lease), and (a) every modification, amendment or other agreement relating to such lease, sublease, subsublease, or other agreement entered into in connection with such lease, sublease, subsublease, or other agreement and (b) every guarantee of the performance and observance of the covenants, conditions and agreements to be performed and observed by the other party thereto.
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“Legal Requirements” shall mean, with respect to each Individual Property and the Collateral, all federal, state, county, municipal and other governmental statutes, laws, rules, orders, regulations, ordinances, judgments, decrees and injunctions of Governmental Authorities affecting such Individual Property or any part thereof, the Collateral or any part thereof, or the construction, use, alteration or operation thereof, or any part thereof, whether now or hereafter enacted and in force, and all permits, licenses and authorizations and regulations relating thereto, and all covenants, agreements, restrictions and encumbrances contained in any instruments, either of record or known to Mortgage Borrower, Operating Lessee, Borrower, Equity Owner or Operating Lessee Pledgor, at any time in force affecting Mortgage Borrower, Borrower, Equity Owner, Operating Lessee Pledgor, Operating Lessee, such Individual Property or any part thereof, or the Collateral or any part thereof, including, without limitation, any which may (a) require repairs, modifications or alterations in or to such Individual Property or any part thereof, or (b) in any way limit the use and enjoyment thereof.
“Lender” shall have the meaning set forth in the introductory paragraph hereto, together with its successors and assigns.
“Lender Indemnitees” shall have the meaning set forth in Section 10.13(b) hereof.
“Letter of Credit” shall mean an irrevocable, unconditional, transferable, clean sight draft letter of credit in favor of Agent and entitling Agent to draw thereon based solely on a statement executed by an officer of Agent stating that it has the right to draw thereon under this Agreement, and issued by a domestic Issuing Bank or the U.S. agency or branch of a foreign Issuing Bank, or if there are no domestic Issuing Banks or U.S. agencies or branches of a foreign Issuing Bank then issuing letters of credit, then such letter of credit may be issued by an Eligible Institution, and upon which letter of credit Agent shall have the right to draw in full: (a) if Agent has not received at least thirty (30) days prior to the date on which the then outstanding letter of credit is scheduled to expire, a notice from the issuing financial institution that it has renewed the applicable letter of credit; (b) thirty (30) days prior to the date of termination following receipt of notice from the issuing financial institution that the applicable letter of credit will be terminated; and (c) thirty (30) days after Agent has given notice to Borrower that the financial institution issuing the applicable letter of credit ceases to either be an Issuing Bank or meet the rating requirement set forth above unless Borrower replaces the Letter of Credit with a replacement Letter of Credit from an Issuing Bank satisfying the requirements of this Agreement within such thirty (30)-day period.
“Liabilities” shall have the meaning set forth in Section 9.2(b) hereof.
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“LIBOR” shall mean, with respect to each Interest Period, the rate (expressed as a percentage per annum and rounded up to the next nearest 1/1000 of 1%) for deposits in U.S. dollars, for a one-month period, that appears on Reuters Screen LIBOR01 Page (or the successor thereto) as of 11:00 a.m., London time, on the related Determination Date. If such rate does not appear on Reuters Screen LIBOR01 Page as of 11:00 a.m., London time, on such Determination Date, LIBOR shall be the arithmetic mean of the offered rates (expressed as a percentage per annum) for deposits in U.S. dollars for a one-month period that appear on the Reuters Screen Libor Page as of 11:00 a.m., London time, on such Determination Date, if at least two such offered rates so appear. If fewer than two such offered rates appear on the Reuters Screen Libor Page as of 11:00 a.m., London time, on such Determination Date, Lender (or Servicer, on Lender’s behalf) shall request the principal London office of any four major reference banks in the London interbank market selected by Lender to provide such bank’s offered quotation (expressed as a percentage per annum) to prime banks in the London interbank market for deposits in U.S. dollars for a one-month period as of 11:00 a.m., London time, on such Determination Date for the amounts of not less than U.S. $1,000,000. If at least two such offered quotations are so provided, LIBOR shall be the arithmetic mean of such quotations. If fewer than two such quotations are so provided, Lender (or Servicer, on Lender’s behalf) shall request any three major banks in New York City selected by Lender to provide such bank’s rate (expressed as a percentage per annum) for loans in U.S. dollars to leading European banks for a one-month period as of approximately 11:00 a.m., New York City time on the applicable Determination Date for amounts of not less than U.S. $1,000,000. If at least two such rates are so provided, LIBOR shall be the arithmetic mean of such rates. LIBOR shall be determined conclusively by Lender or its agent, subject to manifest error. Notwithstanding the foregoing, in no event shall LIBOR be less than zero.
“Licenses” shall have the meaning set forth in Section 4.1.22 hereof.
“Lien” shall mean, with respect to each Individual Property and the Collateral, any mortgage, deed of trust, deed to secure debt, indemnity deed of trust, lien, pledge, hypothecation, assignment, security interest, or any other encumbrance, charge or transfer of, on or affecting any Mortgage Borrower, Operating Lessee, Borrower, Equity Owner, Operating Lessee Pledgor, any Individual Property, the Collateral, any portion thereof or any interest therein, including, without limitation, any conditional sale or other title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, the filing of any financing statement, and mechanic’s, materialmen’s and other similar liens and encumbrances on such Individual Property.
“Liquidation Event” shall have the meaning set forth in Section 2.4.2 hereof.
“Loan” shall mean the loan made by Lender to Borrower pursuant to this Agreement.
“Loan Documents” shall mean, collectively, this Agreement, the Note, the Pledge Agreement, the Environmental Indemnity, the Guaranty, the Interest Rate Cap Agreement, the Assignment of Interest Rate Cap Agreement, the Subordination of Management Agreement and all other documents executed and/or delivered in connection with the Loan.
“Lockbox Account” shall have the meaning set forth in the Mortgage Loan Agreement.
“Lockbox Agreement” shall have the meaning set forth in the Mortgage Loan Agreement.
-17- |
“Major Lease” shall mean any Lease (a) which, either individually or when taken together with any other Lease with the same Tenant or its Affiliates, and assuming the exercise of all expansion rights and all preferential rights to lease additional space contained in such Lease, demises or is expected to demise in excess of 50,000 rentable square feet in the Improvements for office use, (b) for a single tenant in a single-tenant building, (c) contains an option or preferential right to purchase all or any Individual Property, (d) is with an Affiliate of Mortgage Borrower or Borrower as Tenant, or is not the result of arm’s-length negotiations, or (e) is entered into during the continuance of an Event of Default.
“Management Agreement” shall mean each management agreement entered into by and between Mortgage Borrower or Operating Lessee (as applicable) and the Manager, pursuant to which the Manager is to provide management and other services with respect to such Individual Property as set forth on Schedule VIII attached hereto, or, if the context requires, a Replacement Management Agreement pursuant to which a Qualified Manager is managing such Individual Property in accordance with the terms and provisions of this Agreement and the Mortgage Loan Agreement, in each case as the same may be amended, restated, replaced or otherwise modified from time to time in accordance with the terms hereof.
“Manager” shall mean each of the entities listed on Schedule VIII attached hereto, or, if the context requires, a Qualified Manager who is managing the Properties or any Individual Property in accordance with the terms and provisions of this Agreement and the Mortgage Loan Agreement and the applicable Management Agreement.
“Master Lease” shall mean, with respect to the 000 Xxxxxxxx Xxxxxx Property, that certain Agreement of Lease, dated as of July 31, 1985, by and between Xxxxxxxx Xxxxxxx Company, as master lessee, and 000 Xxxxxxxx Xxxxxx Apartment Corp., as master lessor, as amended by that certain First Amendment to Lease, dated as of January 31, 2012, by and between Xxxxxxxx Xxxxxxx Company and 000 Xxxxxxxx Xxxxxx Xxxxxxxxx Xxxx. and that certain Second Amendment to Lease, dated as of December 11, 2012, by and between Xxxxxxxx Xxxxxxx Company and 000 Xxxxxxxx Xxxxxx Apartment Corp., and as assigned from Xxxxxxxx Xxxxxxx Company to ARC NY350BL001, LLC pursuant to that certain Assignment and Assumption of Master Lease, dated as of December 28, 2012, and including any estoppel certificate issued by Master Lessor for the benefit of Lender with respect thereto, as the same may be further amended, restated, replaced or otherwise modified from time to time, in accordance with the terms hereof.
“Master Lessee” shall mean shall mean shall mean ARC NY350BL001, LLC, a Delaware limited liability company, together with its permitted successors and permitted assigns pursuant to this Agreement.
“Master Lessor” shall mean the lessor under the Master Lease.
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“Material Adverse Effect” shall mean any material adverse effect upon (i) the business operations, assets, or condition (financial or otherwise) of Mortgage Borrower, Operating Lessee, Borrower, Equity Owner, Operating Lessee Pledgor, Guarantor, any Individual Property or the Collateral, (ii) the ability of Mortgage Borrower, Operating Lessee, Borrower, Equity Owner, Operating Lessee Pledgor, or Guarantor to perform its obligations under any Mortgage Loan Document or any Loan Document to which it is a party, (iii) the enforceability or validity of any Mortgage Loan Document or any Loan Document, the perfection or priority of any Lien created under any Mortgage Loan Document or any Loan Document or the rights, interests and remedies of Lender under any Mortgage Loan Document or any Loan Document against any Individual Property or the Collateral, (iv) the value, use or operation of any Individual Property or (v) the value of the Collateral.
“Maturity Date” shall mean the Initial Maturity Date or, following an exercise by Borrower of the Extension Option described in Section 2.8 hereof, the Extended Maturity Date, or such other date on which the final payment of principal of the Note becomes due and payable as therein or herein provided, whether at such stated maturity date, by declaration of acceleration or otherwise, or such other date on which the final payment of principal of the Note becomes due and payable as therein or herein provided, whether at such stated maturity date, by declaration of acceleration, or otherwise.
“Maximum Legal Rate” shall mean the maximum nonusurious interest rate, if any, that at any time or from time to time may be contracted for, taken, reserved, charged or received on the indebtedness evidenced by the Note and as provided for herein or the other Loan Documents, under the laws of such state or states whose laws are held by any court of competent jurisdiction to govern the interest rate provisions of the Loan.
“Mezzanine Deposit Account” shall mean an account designated by Lender in writing from time to time to be used for the purposes described herein.
“Monthly Debt Service Payment Amount” shall mean, on each Payment Date, the amount of interest which accrues on the Loan for the related Interest Period.
“Moody’s” shall mean Xxxxx’x Investors Service, Inc.
“Morningstar” shall mean Morningstar Credit Ratings, LLC, or any of its successors in interest, assigns, and/or changed entity name or designation resulting from any acquisition by Morningstar, Inc. or other similar entity of Morningstar Credit Ratings, LLC.
“Mortgage Agent” shall have the meaning given to the term “Agent” in the Mortgage Loan Agreement.
“Mortgage Borrower” shall mean, individually and/or collectively, as the context requires, each of the entities listed on Schedule II attached hereto, together with their respective successors and permitted assigns.
“Mortgage Lender” shall have the meaning given to the term “Lender” in the Mortgage Loan Agreement.
“Mortgage Loan” shall mean that certain loan in the aggregate original principal amount of FIVE HUNDRED MILLION and 00/100 Dollars ($500,000,000.00) made of even date herewith by Mortgage Lender to Mortgage Borrower.
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“Mortgage Loan Agreement” shall mean that certain Loan Agreement, dated as of the date hereof, by and among Mortgage Borrower, Mortgage Agent, Column Financial, Inc., as initial lender, and Mortgage Lender, as acknowledged and agreed to by Operating Lessee (solely with respect to certain terms and conditions specified therein), as the same may be amended, restated, replaced, supplemented or otherwise modified, from time to time.
“Mortgage Loan Cash Management Accounts” shall mean, collectively, the Lockbox Account and the Cash Management Account (each as defined in the Mortgage Loan Agreement).
“Mortgage Loan Cash Management Provisions” shall mean the terms and conditions of the Mortgage Loan Documents relating to cash management (including, without limitation, those relating to the Mortgage Loan Cash Management Accounts).
“Mortgage Loan Debt” shall have the meaning given to the term “Debt” in the Mortgage Loan Agreement.
“Mortgage Loan Documents” shall have the meaning given to the term “Loan Documents” in the Mortgage Loan Agreement.
“Mortgage Loan Event of Default” shall have the meaning given to the term “Event of Default” in the Mortgage Loan Agreement.
“Mortgage Loan Extension Option” shall have the meaning given to the term “Extension Option” in the Mortgage Loan Agreement.
“Mortgage Loan Monthly Debt Service Payment Amount” shall have the meaning given to the term “Monthly Debt Service Payment Amount” in the Mortgage Loan Agreement.
“Mortgage Loan Note” shall have the meaning given to the term “Note” or “Notes” in the Mortgage Loan Agreement.
“Mortgage Loan Pledge Agreement shall have the meaning given to the term “Pledge Agreement” in the Mortgage Loan Agreement.
“Mortgage Loan Release Amount” shall have the meaning given to the term “Release Amount” in the Mortgage Loan Agreement.
“Mortgage Loan Release Property” shall have the meaning given to the term “Release Property” in the Mortgage Loan Agreement.
“Mortgage Loan Reserve Funds” shall mean the “Reserve Funds” as defined in the Mortgage Loan Agreement.
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“Multiemployer Plan” shall mean a multiemployer plan, as defined in Section 3(37) or Section 4001(a)(3) of ERISA, as applicable, in respect of which the Mortgage Borrower, Operating Lessee, Borrower, Equity Owner, Operating Lessee Pledgor, Guarantor or any ERISA Affiliate could have any obligation or liability, contingent or otherwise.
“Multiple Employer Plan” shall mean a single employer plan, as defined in Section 4001(a)(15) of ERISA, that has two or more contributing sponsors, as defined in Section 4001(a)(13) of ERISA, at least two of which are not under common control, as determined pursuant to Section 4001(a)(14)(B) of ERISA and (a) is maintained for employees of the Mortgage Borrower, Operating Lessee, Borrower, Equity Owner, Operating Lessee Pledgor, Guarantor or any ERISA Affiliate, or (b) was so maintained, and in respect of which the Mortgage Borrower, Operating Lessee, Borrower, Equity Owner, Operating Lessee Pledgor, Guarantor or any ERISA Affiliate could have liability under Sections 4062-4069 of ERISA in the event such plan has been or were to be terminated.
“Net Cash Flow” shall mean, with respect to the Property for any period, the amount obtained by subtracting Operating Expenses and Capital Expenditures for such period from Gross Income from Operations for such period.
“Net Liquidation Proceeds After Debt Service” shall mean, with respect to any Liquidation Event, all amounts paid to or received by or on behalf of Mortgage Borrower or Operating Lessee (as applicable) in connection with such Liquidation Event, including, without limitation, proceeds of any sale, refinancing or other disposition or liquidation, less (i) Lender’s and/or Mortgage Lender’s reasonable costs incurred in connection with the recovery thereof, (ii) in the case of a casualty or condemnation, the costs incurred by Mortgage Borrower or Operating Lessee (as applicable) in connection with a Restoration of all or any portion of any Individual Property made in accordance with the Mortgage Loan Documents, (iii) amounts required or permitted to be deducted therefrom, and amounts paid or to be paid, pursuant to the Mortgage Loan Documents to Mortgage Lender, (iv) in the case of a foreclosure sale, disposition or transfer of the Properties or in connection with realization thereon following a Mortgage Loan Event of Default, such reasonable and customary costs and expenses of sale or other disposition (including reasonable attorneys’ fees and brokerage commissions), (v) in the case of a foreclosure sale, such costs and expenses incurred by Mortgage Lender under the Mortgage Loan Documents as Mortgage Lender shall be entitled to receive reimbursement for under the terms of the Mortgage Loan Documents, (vi) in the case of a refinancing of the Mortgage Loan, such costs and expenses (including reasonable attorneys’ fees) of such refinancing consummated in accordance with the applicable terms and conditions of the Mortgage Loan Agreement, if any, and (vii) the amount of any prepayments required pursuant to the Mortgage Loan Documents in connection with any such Liquidation Event.
“Net Operating Income” shall have the meaning set forth in the Mortgage Loan Agreement.
“Net Proceeds” shall have the meaning set forth in the Mortgage Loan Agreement.
“New Mezzanine Borrower” shall have the meaning set forth in Section 9.1.3(b) hereof.
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“New Mezzanine Loan” shall have the meaning set forth in Section 9.1.3(b) hereof.
“Note” shall, individually and/or collectively, as the context may require, each of Note X-0, Xxxx X-0, Xxxx X-0, Xxxx X-0, Note B-2 and Note B-3.
“Note A-1” shall mean that certain Mezzanine Promissory Note A-1 of even date herewith in the principal amount of FORTY-FOUR MILLION and 00/100 Dollars ($44,000,000.00), made by Borrower in favor of Initial Lender, as the same may have been or may be amended, restated, replaced, severed, split, supplemented or otherwise modified from time to time.
“Note A-2” shall mean that certain Mezzanine Promissory Note A-2 of even date herewith in the principal amount of FIFTY-FIVE MILLION and 00/100 Dollars ($55,000,000.00), made by Borrower in favor of Initial Lender, as the same may have been or may be amended, restated, replaced, severed, split, supplemented or otherwise modified from time to time.
“Note A-3” shall mean that certain Mezzanine Promissory Note A-3 of even date herewith in the principal amount of ELEVEN MILLION and 00/100 Dollars ($11,000,000.00), made by Borrower in favor of Initial Lender, as the same may have been or may be amended, restated, replaced, severed, split, supplemented or otherwise modified from time to time.
“Note B-1” shall mean that certain Mezzanine Promissory Note B-1 of even date herewith in the principal amount of SIXTY MILLION and 00/100 Dollars ($60,000,000.00), made by Borrower in favor of Initial Lender, as the same may have been or may be amended, restated, replaced, severed, split, supplemented or otherwise modified from time to time.
“Note B-2” shall mean that certain Mezzanine Promissory Note B-2 of even date herewith in the principal amount of SEVENTY-FIVE MILLION and 00/100 Dollars ($75,000,000.00), made by Borrower in favor of Initial Lender, as the same may have been or may be amended, restated, replaced, severed, split, supplemented or otherwise modified from time to time.
“Note B-3” shall mean that certain Mezzanine Promissory Note B-3 of even date herewith in the principal amount of FIFTEEN MILLION and 00/100 Dollars ($15,000,000.00), made by Borrower in favor of Initial Lender, as the same may have been or may be amended, restated, replaced, severed, split, supplemented or otherwise modified from time to time.
“O&M Program” shall mean each operations and maintenance program set forth on Schedule XIII attached hereto, as the same may be amended, replaced, supplemented or otherwise modified from time to time.
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“Obligations” shall mean Borrower’s obligation to pay the Debt, Borrower’s obligation to perform its obligations under the Note, this Agreement and the other Loan Documents and Equity Owner’s obligation to perform its obligations under this Agreement and, as applicable, the other Loan Documents.
“Officer’s Certificate” shall mean a certificate delivered to Lender by Borrower or Equity Owner, as applicable, which is signed by an authorized senior officer of Borrower or Equity Owner, as applicable.
“Operating Expenses” shall have the meaning set forth in the Mortgage Loan Agreement.
“Operating Lease” shall mean, with respect to the Viceroy Property, that certain Lease Agreement, dated as of November 18, 2013, by and between Operating Lessor and Operating Lessee, as amended by that certain First Amendment of Lease, dated as of December 20, 2016, by and between Operating Lessor and Operating Lessee, as the same may be amended, restated, replaced, supplemented or modified from time to time, in accordance with the terms hereof.
“Operating Lessee” shall mean ARC NY120W5701 TRS, LLC, a Delaware limited liability company, together with its permitted successors and permitted assigns pursuant to the Mortgage Loan Agreement and this Agreement.
“Operating Lessee Pledgor” shall mean ARC NY120W5701 TRS Mezz II, LLC, a Delaware limited liability company, together with its permitted successors and permitted assigns pursuant to the Mortgage Loan Agreement and this Agreement.
“Operating Lessor” shall mean ARC NY120W5701, LLC, a Delaware limited liability company, together with its permitted successors and permitted assigns, as lessor, pursuant to the Operating Lease, the Mortgage Loan Agreement and this Agreement.
“Operating Rent” shall have the meaning set forth in the Mortgage Loan Agreement.
“Other Charges” shall have the meaning set forth in the Mortgage Loan Agreement.
“Other Connection Taxes” shall mean Impositions imposed as a result of a present or former connection between Lender and the jurisdiction imposing such Imposition (other than connections arising from such Lender having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in the Loan or any Loan Document).
“Other Taxes” shall mean all present or future stamp, court or documentary, intangible, recording, filing or similar Impositions that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Impositions that are Other Connection Taxes imposed with respect to an assignment.
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“PACE Loan” shall mean any Property-Assessed Clean Energy loan or any similar financing.
“Participant Register” shall have the meaning set forth in Section 9.1.4(b) hereof.
“Participation” shall have the meaning set forth in Section 9.1.4(a) hereof.
“Payment Date” shall mean the twentieth (20th) day of each calendar month during the term of the Loan or, if such day is not a Business Day, the immediately preceding Business Day.
“PBGC” shall have the meaning assigned to that term in the definition of ERISA Event.
“Permitted Encumbrances” shall mean, (i) with respect to each Individual Property, (a) the Liens and security interests created by the Mortgage Loan Documents, (b) all Liens, encumbrances and other matters disclosed in the Title Insurance Policy relating to such Individual Property or any part thereof, (c) Liens, if any, for Taxes imposed by any Governmental Authority not yet due or delinquent (other than Liens securing a PACE Loan), (d) such other title and survey exceptions as Lender has approved or may approve in writing in Lender’s sole discretion, and (e) the Lien of the Mortgage Loan Pledge Agreement and any mezzanine loan entered into pursuant to Section 9.1.3(b) hereof, and (ii) with respect to the Collateral, the Liens and security interests created by the Loan Documents and the Pledge Agreement.
“Permitted Investments” shall mean any one or more of the following obligations or securities acquired at a purchase price of not greater than par, including those issued by Servicer, the trustee under any Securitization or any of their respective Affiliates, payable on demand or having a maturity date not later than the Business Day immediately prior to the first Payment Date following the date of acquiring such investment and meeting one of the appropriate standards set forth below:
(i) obligations of, or obligations fully guaranteed as to payment of principal and interest by, the United States or any agency or instrumentality thereof provided such obligations are backed by the full faith and credit of the United States of America including, without limitation, obligations of: the U.S. Treasury (all direct or fully guaranteed obligations), the Small Business Administration (guaranteed participation certificates and guaranteed pool certificates) and the U.S. Department of Housing and Urban Development (local authority bonds); provided, however, that the investments described in this clause (A) must have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have any qualifier affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, (D) must not be subject to liquidation prior to their maturity and (E) must have maturities of not more than 365 days;
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(ii) Federal Housing Administration debentures having maturities of not more than 365 days;
(iii) obligations of the following United States government sponsored agencies: Federal Home Loan Mortgage Corp. (debt obligations), the Farm Credit System (consolidated system-wide bonds and notes), the Federal Home Loan Banks (consolidated debt obligations), the Federal National Mortgage Association (debt obligations), and the Resolution Funding Corp. (debt obligations); provided, however, that the investments described in this clause (A) must have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have any qualifier affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, (D) must not be subject to liquidation prior to their maturity and (E) must have maturities of not more than 365 days;
(iv) federal funds, unsecured certificates of deposit, time deposits, bankers’ acceptances and repurchase agreements or obligations with maturities of not more than 365 days issued or held by any depository institution or trust company incorporated or organized under the laws of the United States of America or any state thereof and subject to supervision and examination by federal or state banking authorities, so long as the commercial paper or other short term obligations of which at all times are rated in the highest short term rating category by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency in the highest short term rating category and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) (and if the term is between one and three months rated at least A1 by Moody’s) and, if it has a term in excess of three months, the long-term debt obligations of which are rated AAA (or the equivalent) by each of the Rating Agencies; provided, however, that the investments described in this clause (A) must have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have any qualifier affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, (D) must not be subject to liquidation prior to their maturity and (E) must have maturities of not more than 365 days;
(v) intentionally omitted;
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(vi) debt obligations with maturities of not more than 365 days and at all times rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest long-term unsecured rating category; provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have any qualifier affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;
(vii) commercial paper (including both non-interest-bearing discount obligations and interest-bearing obligations payable on demand or on a specified date not more than one year after the date of issuance thereof) with maturities of not more than 365 days and that at all times is rated by each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) in its highest short-term unsecured debt rating (and if the term is between one and three months rated at least A1 by Moody’s) and, if it has a term in excess of three months, the long-term debt obligations of which are rated AAA (or the equivalent) by each of the Rating Agencies; provided, however, that the investments described in this clause must (A) have a predetermined fixed dollar of principal due at maturity that cannot vary or change, (B) if rated by S&P, must not have any qualifier affixed to their rating, (C) if such investments have a variable rate of interest, such interest rate must be tied to a single interest rate index plus a fixed spread (if any) and must move proportionately with that index, and (D) such investments must not be subject to liquidation prior to their maturity;
(viii) units of taxable money market funds, which funds are regulated investment companies, seek to maintain a constant net asset value per share and invest solely in obligations backed by the full faith and credit of the United States, which funds have the highest rating available from each Rating Agency (or, if not rated by all Rating Agencies, rated by at least one Rating Agency and otherwise acceptable to each other Rating Agency, as confirmed in writing that such investment would not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities) for money market funds; and
(ix) any other security, obligation or investment which has been approved as a Permitted Investment in writing by (a) Lender and (b) each Rating Agency, as evidenced by a written confirmation that the designation of such security, obligation or investment as a Permitted Investment will not, in and of itself, result in a downgrade, qualification or withdrawal of the initial, or, if higher, then current ratings assigned to the Securities by such Rating Agency;
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provided, however, that no obligation or security shall be a Permitted Investment if (A) such obligation or security evidences a right to receive only interest payments or (B) the right to receive principal and interest payments on such obligation or security are derived from an underlying investment that provides a yield to maturity in excess of 120% of the yield to maturity at par of such underlying investment.
“Person” shall mean any individual, corporation, partnership, joint venture, limited liability company, estate, trust, unincorporated association, any federal, state, county or municipal government or any bureau, department or agency thereof and any fiduciary acting in such capacity on behalf of any of the foregoing.
“Personal Property” shall have the meaning set forth in the granting clause of each Security Instrument.
“Physical Condition Reports” shall mean each property condition report delivered in connection with the closing of the Loan, satisfactory in form and substance to Lender.
“Plan” shall mean a Single Employer Plan, a Multiple Employer Plan or a Multiemployer Plan.
“Pledge Agreement” shall mean, collectively, the Pledge Agreement (Mortgage Borrower) and the Pledge Agreement (Operating Pledgor).
“Pledge Agreement (Mortgage Borrower)” shall mean that certain Mezzanine Pledge and Security Agreement (Mortgage Borrower), dated as of the date hereof, from Borrower to Agent, with respect to 100% of the direct equity interests in Mortgage Borrower, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Pledge Agreement (Operating Pledgor)” shall mean that certain Mezzanine Pledge and Security Agreement (Operating Pledgor), dated as of the date hereof, from Equity Owner, to Agent, with respect to 100% of the direct equity interests in Operating Lessee Pledgor, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Pledged Securities” shall mean the “Pledged Securities” as such term is defined in the Pledge Agreement.
“Policies” or “Policy” shall have the meaning specified in the Mortgage Loan Agreement.
“Prescribed Laws” shall mean, collectively, (a) the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Public Law 107-56) (The USA PATRIOT Act), (b) Executive Order No. 13224 on Terrorist Financing, effective September 24, 2001, and relating to Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism, (c) the International Emergency Economic Power Act, 50 U.S.C. § 1701 et seq. and (d) all other Legal Requirements relating to money laundering or terrorism.
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“Prime Rate” shall mean, on a particular date, a rate per annum equal to the rate of interest published in The Wall Street Journal as the “prime rate”, as in effect on such day, with any change in the prime rate resulting from a change in such published prime rate to be effective as of the date of the relevant change in such published prime rate; provided, however, that if more than one prime rate is published in The Wall Street Journal for a day, the average of the prime rates shall be used; provided, further, however, that the Prime Rate (or the average of the prime rates) will be rounded to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%. In the event that The Wall Street Journal should cease or temporarily interrupt publication, then the Prime Rate shall mean the daily average prime rate published in another business newspaper, or business section of a newspaper, of national standing chosen by Lender. If The Wall Street Journal resumes publication, the substitute index will immediately be replaced by the prime rate published in The Wall Street Journal. In the event that a prime rate is no longer generally published or is limited, regulated or administered by a governmental or quasi-governmental body, then Lender shall select a comparable interest rate index which is readily available to Borrower and verifiable by Borrower but is beyond the control of Lender. Lender shall give Borrower prompt written notice of its choice of a substitute index and when the change became effective. Such substitute index will also be rounded to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next higher 1/16 of 1%. The determination of the Prime Rate by Lender shall be conclusive and binding absent manifest error. Notwithstanding the foregoing, in no event shall Prime Rate be less than zero.
“Prime Rate Loan” shall mean the Loan at such time as interest thereon accrues at a rate of interest based upon the Prime Rate plus the Prime Rate Spread.
“Prime Rate Spread” shall mean the difference (expressed as the number of basis points) between (a) LIBOR plus the Spread on the date LIBOR was last applicable to the Loan and (b) the Prime Rate on the date that LIBOR was last applicable to the Loan; provided, however, in no event shall such difference be a negative number.
“Property” or “Properties” shall mean, collectively, each and every Individual Property which is subject to the terms of the Mortgage Loan Agreement and this Agreement, to the extent the same is encumbered by one or more Security Instrument and has not been released therefrom pursuant to the terms hereof and of the Mortgage Loan Agreement.
“Provided Information” shall mean any and all financial and other written information provided at any time by, or on behalf of, any Indemnifying Person with respect to the Property, the Collateral, Mortgage Borrower, Borrower, Guarantor and/or Manager.
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“Qualified Manager” shall mean either (a) Manager; or (b) any reputable and experienced New York City-recognized or nationally-recognized property management organization (which may be an Affiliate of Borrower) that satisfies the following criteria: (i) possesses at least five (5) years’ experience managing properties similar in size, class, use and operation as the Properties, (ii) manages at least 5,000,000 square feet of rentable space for properties similar in size, class, use and operation as the Properties and (iii) has not been a party to a Bankruptcy Action or taken advantage of any law under the Bankruptcy Code for the benefit of debtors within the seven (7) years prior to the date of determination; or (c) in the reasonable judgment of Lender, a reputable and experienced management organization (which may be an Affiliate of Borrower) possessing experience in managing properties similar in size, scope, use and value as the Properties, or otherwise reasonably approved by Lender; or (d) any of those certain property management organizations set forth on Schedule XIV attached hereto, provided, that, with respect to clauses (b) and (c) only, if required by Lender after a Securitization, Borrower shall have obtained a Rating Agency Confirmation from the Approved Rating Agencies with respect to such Manager and its management of the Property.
“Rating Agencies” shall mean each of S&P, Moody’s, Fitch, DBRS and Morningstar, or any other nationally recognized statistical rating agency which has assigned a rating to the Securities.
“Rating Agency Confirmation” means, collectively, a written affirmation from each of the Approved Rating Agencies that the credit rating of the Securities given by such Approved Rating Agency with respect to a Securitization immediately prior to the occurrence of the event with respect to which such Rating Agency Confirmation is sought will not be qualified, downgraded or withdrawn as a result of the occurrence of such event, which affirmation may be granted or withheld in such Approved Rating Agency’s sole and absolute discretion. In the event that, at any given time, no Approved Rating Agency has elected to consider whether to grant or withhold such an affirmation and Lender does not otherwise have an approval right with respect to such event, then the term Rating Agency Confirmation shall be deemed instead to require the written reasonable approval of Lender based on its good faith determination of whether the Approved Rating Agencies would issue a Rating Agency Confirmation, provided that the foregoing shall be inapplicable in any case in which Lender has an independent approval right in respect of the matter at issue pursuant to the terms of this Agreement.
“Register” shall have the meaning set forth in Section 9.3(e) hereof.
“Regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency or department.
“Regulation AB” shall mean Regulation AB under the Securities Act and the Exchange Act, as such Regulation may be amended from time to time.
“Reimbursement Contribution” shall have the meaning set forth in Section 10.30(c) hereof.
“Release” shall have the meaning set forth in the Environmental Indemnity.
“Release Amount” shall mean, in connection with a release pursuant to Section 2.5.2 hereof of any Release Collateral in connection with the release of any Individual Property pursuant to Section 2.5.2 of the Mortgage Loan Agreement, the following amount: (i) if $52,000,000.00 or less has been prepaid pursuant to Section 2.5.2 of this Agreement, then one hundred percent (100%) of the Allocated Loan Amount of the Collateral being released, or (ii) if more than $52,000,000.00 has been prepaid pursuant to Section 2.5.2 of this Agreement, then one hundred ten percent (110%) of the Allocated Loan Amount of the Collateral being released thereafter.
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“Release Collateral” shall have the meaning set forth in Section 2.5.2 hereof.
“Release Date” shall have the meaning set forth in Section 2.5.2(a) hereof.
“Release Property” shall have the meaning set forth in Section 2.5.2 hereof.
“Rents” shall have the meaning set forth in the Mortgage Loan Agreement.
“Replacement Interest Rate Cap Agreement” shall mean, collectively, one or more interest rate protection agreements, reasonably acceptable to Lender, from an Acceptable Counterparty with terms substantially similar to the Interest Rate Cap Agreement except that the same shall be effective as of the date required in Section 2.2.8(c); provided that, after a Securitization, to the extent any such interest rate protection agreements do not meet the foregoing requirements, a “Replacement Interest Rate Cap Agreement” shall be such interest rate protection agreements approved in writing by the Approved Rating Agencies with respect thereto.
“Replacement Management Agreement” shall mean, collectively, (a) a management agreement with a Qualified Manager, which management agreement shall be subject to Lender’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) and, following a Securitization, a Rating Agency Confirmation with respect to such Manager and its management of the Properties from the applicable Approved Rating Agencies; and (b) a subordination of management agreement and management fees substantially in the form delivered to Lender on the Closing Date (or of such other form and substance reasonably acceptable to Lender), executed and delivered to Lender by Borrower, Mortgage Borrower or Operating Lessee (as applicable) and such Qualified Manager at Borrower’s or Mortgage Borrower’s expense.
“Replacement Reserve Fund” shall have the meaning set forth in the Mortgage Loan Agreement.
“Required Lender Threshold” shall have the meaning set forth in Section 9.3(a) hereof.
“Required Repairs” shall have the meaning set forth in Section 5.1.39(a) hereof.
“Reserve Funds” shall mean any reserve or escrow fund established by this Agreement or the other Loan Documents.
“Resolution Authority” means anybody which has authority to exercise any Write-down and Conversion Powers.
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“Restoration” shall mean the repair and restoration of an Individual Property after a Casualty or Condemnation as nearly as possible to the condition the Individual Property was in immediately prior to such Casualty or Condemnation, with such alterations as may be reasonably approved by Lender.
“Restricted Party” shall mean, collectively (a) Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, Guarantor and any Affiliated Manager and (b) any shareholder, partner, member, non-member manager, direct or indirect legal or beneficial owner of, Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, Guarantor, any Affiliated Manager or any non-member manager.
“Rollover Reserve Fund” shall have the meaning set forth in the Mortgage Loan Agreement.
“S&P” shall mean Standard & Poor’s Ratings Services.
“Sale or Pledge” shall mean a voluntary or involuntary sale, conveyance, assignment, transfer, encumbrance, pledge, grant of option or other transfer or disposal of a legal or beneficial interest, whether direct or indirect, including, without limitation, any merger or consolidation of Guarantor.
“Securities” shall have the meaning set forth in Section 9.1.1(a) hereof.
“Securities Act” shall have the meaning set forth in Section 9.2(a) hereof.
“Securitization” shall have the meaning set forth in Section 9.1.1(a) hereof.
“Security Instrument” shall have the meaning set forth in the Mortgage Loan Agreement.
“Servicer” shall have the meaning set forth in Section 9.6 hereof.
“Servicing Agreement” shall have the meaning set forth in Section 9.6 hereof.
“Severed Loan Documents” shall have the meaning set forth in Section 8.2(c) hereof.
“Significant Obligor” shall have the meaning set forth in Item 1101(k) of Regulation AB under the Securities Act.
“Single Employer Plan” shall mean a single employer plan, as defined in Section 3(41) or Section 4001(a)(15) of ERISA, as applicable, that is not a Multiple Employer Plan and (a) is maintained for employees of the Mortgage Borrower, Borrower, Guarantor or any ERISA Affiliate, or (b) was so maintained, and in respect of which the Mortgage Borrower, Borrower, Guarantor or any ERISA Affiliate could have liability under Sections 4062-4069 of ERISA in the event such plan has been or were to be terminated.
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“Special Purpose Entity” shall mean a corporation, limited partnership or limited liability company that, at all times since the date of its formation and on and after the date hereof, has complied with and shall at all times comply with the following requirements unless it has received prior consent (not to be unreasonably withheld, delayed or conditioned) to do otherwise from Lender or a permitted administrative agent thereof, and, while the Loan is securitized, a Rating Agency Confirmation from each of the Approved Rating Agencies, in each case:
(a) is and shall be organized solely for the purpose of, in the case of Borrower and Equity Owner, acquiring, owning, holding, selling, transferring, exchanging and managing the Collateral, entering into and performing its obligations under the Loan Documents with Lender, refinancing the Collateral in connection with a permitted repayment of the Loan, and transacting lawful business that is incident, necessary and appropriate to accomplish the foregoing;
(b) has not engaged and shall not engage in any business unrelated to, in the case of Borrower and Equity Owner, the acquisition, ownership, holding, selling, transferring, exchanging and management of the Collateral;
(c) has not owned and shall not own directly any real property;
(d) does not have, shall not have and at no time had any assets other than, in the case of Borrower and Equity Owner, (i) the Collateral, personal property necessary or incidental to its ownership of the Collateral, and cash, cash equivalents and accounts receivable and (ii) any other assets expressly permitted to be owned pursuant to this Agreement;
(e) has not engaged in, sought, consented to or permitted and shall not engage in, seek, consent to or permit (i) any dissolution, winding up, liquidation, consolidation or merger, (ii) any sale or other transfer of all or substantially all of its assets or any sale of assets outside the ordinary course of its business, except as permitted by the Loan Documents, or (iii) any transfer of the Collateral other than as expressly permitted by the Loan Documents;
(f) shall not cause, consent to or permit any amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation, operating agreement or other formation document or organizational document (as applicable) with respect to the matters set forth in this definition;
(g) if such entity is a limited partnership, has and shall have at least one general partner and has and shall have, as its only general partners, Special Purpose Entities each of which (i) is a corporation or single-member Delaware limited liability company, (ii) has two (2) Independent Directors, and (iii) holds a direct interest as general partner in the limited partnership of not less than one-half of one percent (0.5%);
(h) if such entity is a corporation, has and shall have at least two (2) Independent Directors, and shall not cause or permit the board of directors of such entity to take any Bankruptcy Action either with respect to itself;
(i) if such entity is a limited liability company (other than a limited liability company meeting all of the requirements applicable to a single-member limited liability company set forth in this definition of “Special Purpose Entity”), has and shall have at least one (1) member that is a Special Purpose Entity, that is a corporation or a single-member limited liability company, that has at least two (2) Independent Directors and that directly owns at least one-half-of-one percent (0.5%) of the equity of the limited liability company;
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(j) If such entity is a single-member limited liability company, (i) is and shall be a Delaware limited liability company (except with respect to 50 Varick LLC, which is and shall be a Delaware or New York limited liability company), (ii) has and shall have at least two (2) Independent Managers serving as managers of such company, (iii) shall not take any action requiring the unanimous affirmative vote of the managing member and the Independent Directors and shall not cause or permit the members or managers of such entity to take any action requiring the unanimous affirmative vote of the managing member and the Independent Directors unless two (2) Independent Directors then serving as managers of the company shall have consented in writing to such action, and (iv) has and shall have either (A) a member which owns no economic interest in the company, has signed the company’s limited liability company agreement and has no obligation to make capital contributions to the company, or (B) two (2) natural persons or one entity that is not a member of the company, that has signed its limited liability company agreement and that, under the terms of such limited liability company agreement becomes a member of the company immediately prior to the withdrawal or dissolution of the last remaining member of the company;
(k) has not and shall not (and, if such entity is (i) a limited liability company, has and shall have a limited liability agreement or an operating agreement, as applicable, (ii) a limited partnership, has a limited partnership agreement, or (iii) a corporation, has a certificate of incorporation or articles that, in each case, provides that such entity shall not) (A) dissolve, merge, liquidate, consolidate; (B) sell all or substantially all of its assets except as expressly permitted under the Loan Documents; (C) amend its organizational documents with respect to the matters set forth in this definition without the consent of Lender; or (D) without the affirmative vote of two (2) Independent Directors take any Bankruptcy Action;
(l) intends at all times to be solvent and has paid and intends to pay its debts and liabilities (including, a fairly-allocated portion of any personnel and overhead expenses that it shares with any Affiliate) from its assets as the same shall become due, and has maintained and intends to maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; provided, however, the foregoing shall not require any direct or indirect member, partner or shareholder of Borrower to make any additional capital contributions to Borrower;
(m) has not failed and shall not fail to correct any known misunderstanding regarding the separate identity of such entity and has not identified and shall not identify itself as a division of any other Person;
(n) (i) has maintained and shall maintain its bank accounts, books of account, books and records separate from those of any other Person; provided, however, each Individual Borrower’s assets may be included in a consolidated financial statement of its Affiliates if (A) appropriate notation shall be made on such consolidated financial statements to indicate the separateness of such Individual Borrower and such Affiliates and, except with respect to its co-borrowers hereunder, that such Individual Borrower’s assets and credit are not available to satisfy the debts and other obligations of such Affiliates or any other Person, and (B) such assets shall be listed on each Individual Borrower’s own separate balance sheet, and (ii) to the extent that it is required to file tax returns under applicable law, has filed and shall file its own tax returns, except to the extent that such Individual Borrower (x) is required by law to file consolidated tax returns or (y) is treated as a “disregarded entity” for tax purposes and are not required to file tax returns under applicable law;
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(o) has maintained and shall maintain its own records, books, resolutions and agreements;
(p) has not commingled and shall not commingle its funds or assets with those of any other Person and has not participated and shall not participate in any cash management system with any other Person other than as co-borrowers under the Loan and the loan being repaid as of the date hereof;
(q) has held and shall hold its assets in its own name;
(r) has conducted and shall conduct its business in its name or in a name franchised or licensed to it by an entity other than an Affiliate of itself or of Borrower or Equity Owner (as applicable), except for business conducted on behalf of itself by another Person under a business management services agreement that is on commercially-reasonable terms, so long as the manager, or equivalent thereof, under such business management services agreement holds itself out as an agent of Borrower or Equity Owner (as applicable);
(s) (i) has maintained and shall maintain its financial statements, accounting records and other entity documents separate from those of any other Person; (ii) has shown and shall show, in its financial statements, its asset and liabilities separate and apart from those of any other Person; and (iii) has not permitted and shall not permit its assets to be listed as assets on the financial statement of any of its Affiliates except as required by GAAP or, with respect to the Viceroy Property, the Uniform System of Accounts; provided, however, that any such consolidated financial statement contains a note indicating that the Special Purpose Entity’s separate assets and credit are not available to pay the debts of such Affiliate and that the Special Purpose Entity’s liabilities do not constitute obligations of the consolidated entity;
(t) has paid and shall pay its own liabilities and expenses, including the salaries of its own employees (if any), out of its own funds and assets, and has maintained and shall maintain a sufficient number of employees (if any) in light of its contemplated business operations; provided, however, the foregoing shall not require any direct or indirect member, partner or shareholder of Borrower to make any additional capital contributions to Borrower;
(u) has observed and shall do all things necessary to observe all partnership, corporate or limited liability company formalities, as applicable;
(v) has not incurred any Indebtedness other than (i) acquisition financing with respect to the Collateral and Indebtedness pursuant to letters of credit, guaranties, interest rate protection agreements and other similar instruments executed and delivered in connection with such financings, all of which have been repaid in full, and (ii) unsecured trade payables and operational debt not evidenced by a note and not outstanding for more than sixty (60) days incurred in the ordinary course of business in an amount not to exceed $50,000;
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(w) shall not incur any Indebtedness other than (i) the Loan, (ii) liabilities incurred in the ordinary course of business relating to the ownership of the Collateral and the routine administration of Borrower or Equity Owner (as applicable), in amounts not to exceed $50,000, which liabilities are not more than sixty (60) days past the date incurred, are not evidenced by a note and are paid when due, and which amounts are normal and reasonable under the circumstances, and (iii) such other liabilities that are expressly permitted pursuant to this Agreement;
(x) except as required by this Agreement or the other Loan Documents, has not assumed, guaranteed or become obligated and shall not assume or guarantee or become obligated for the debts of any other Person, has not held out and shall not hold out its credit as being available to satisfy the obligations of any other Person or has not pledged and shall not pledge its assets or any direct or indirect interest in or rights to distributions from Borrower to secure the obligations of any other Person (other than the Pledge Agreement);
(y) has not acquired and shall not acquire obligations or securities of its partners, members or shareholders or any other owner or Affiliate (except the Pledged Securities);
(z) has allocated and shall allocate fairly and reasonably any overhead expenses that are shared with any of its Affiliates, constituents, or owners, or any guarantors of any of their respective obligations, or any Affiliate of any of the foregoing, including, but not limited to, paying for shared office space and for services performed by any employee of an Affiliate;
(aa) has maintained and used and shall maintain and use, to the extent reasonably necessary for the operation of its business, separate stationery, invoices and checks bearing its name and not bearing the name of any other entity unless such entity is clearly designated in writing as being the Special Purpose Entity’s agent;
(bb) has not pledged and shall not pledge its assets or any direct or indirect interest in or rights to distributions from Borrower to secure the obligations of any other Person other than with respect to the Loan secured by the Collateral and no such pledge remains outstanding except to Lender to secure the Loan;
(cc) has held itself out and identified itself and shall hold itself out and identify itself as a separate and distinct entity (recognizing that any Borrower may be treated as a “disregarded entity” for tax purposes and is not required to file tax returns for tax purposes under applicable law) under its own name or in a name franchised or licensed to it by an entity other than an Affiliate of Borrower or Equity Owner (as applicable) and not as a division or part of any other Person,
(dd) has maintained and shall maintain its assets in such a manner that it shall not be costly or difficult to segregate, ascertain or identify its individual assets from those of any other Person;
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(ee) has not made and shall not make loans to any Person and has not held and shall not hold evidence of indebtedness issued by any other Person or entity (other than cash and investment-grade securities issued by an entity that is not an Affiliate of or subject to common ownership with such entity);
(ff) has not identified and shall not identify its partners, members or shareholders, or any Affiliate of any of them, as a division or part of it, and has not identified itself and shall not identify itself as a division of any other Person;
(gg) other than capital contributions and distributions permitted under the terms of its organizational documents, has not entered into or been a party to, and shall not enter into or be a party to, any transaction with any of its partners, members, shareholders or Affiliates except for this Loan, the loan being repaid as of the date hereof and in the ordinary course of its business and on terms which are commercially reasonable terms comparable to those of an arm’s-length transaction with an unrelated third party;
(hh) except as expressly provided in this Agreement or in the other Loan Documents, has not had and shall not have any obligation to, and has not indemnified and shall not indemnify its partners, officers, directors or members, as the case may be, in each case unless such an obligation or indemnification is fully subordinated to the Debt and shall not constitute a claim against it in the event that its cash flow is insufficient to pay the Debt;
(ii) has considered and shall consider the interests of its creditors in connection with all corporate, limited liability company or limited partnership actions;
(jj) has not had and shall not have any of its obligations guaranteed by any Affiliate except as provided by the Loan Documents;
(kk) has not formed, acquired or held and shall not form, acquire or hold any subsidiary, except, with respect to Equity Owner, Operating Lessee and Operating Lessee Pledgor, and with respect to Borrower, Mortgage Borrower;
(ll) has complied and shall comply in all material respects with all of the terms and provisions contained in its organizational documents.
(mm) intentionally omitted;
(nn) has not permitted and shall not permit any Affiliate or constituent party independent access to its bank accounts;
(oo) is, has always been and shall continue to be duly formed, validly existing, and in good standing in the state of its incorporation or formation and in all other jurisdictions where it is qualified to do business;
(pp) has paid all taxes which it owes and is not currently involved in any dispute with any taxing authority;
(qq) is not now, nor has ever been, party to any lawsuit, arbitration, summons, or legal proceeding that resulted in a judgment against it that has not been paid in full;
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(rr) except as set forth in the Recycled Special Purpose Entity Certificate delivered to Lender on the Closing Date, has no judgments or Liens of any nature against it except for tax liens not yet due and the Permitted Encumbrances;
(ss) has provided Lender with complete financial statements that reflect a fair and accurate view of the entity’s financial condition; and
(tt) has no material contingent or actual obligations not related to the Property.
With respect to Mortgage Borrower, Operating Lessee and Operating Lessee Pledgor, “Special Purpose Entity” shall have the meaning set forth in the Mortgage Loan Agreement.
“Spread” shall mean, with respect to each Note, the following amounts, as the same may be increased pursuant to Section 2.8(g) hereof, or reallocated pursuant to Section 9.1.1(c) hereof”
(i) Note X-0, Xxxx X-0 and Note A-3, 4.50%; and
(ii) Note B-1, Note B-2 and Note B-3, 6.50%.
“State” shall mean, with respect to an Individual Property, the State or Commonwealth in which such Individual Property or any part thereof is located.
“Strike Price” shall mean (i) with respect to the initial term of the Loan, three percent (3%) and (ii) with respect to the Extension Period, if any, such strike price which will cause the Debt Service Coverage Ratio to be no less than 1.20:1.00 on the first day of the Extension Period (based upon the trailing twelve (12) month period immediately preceding the first day of the Extension Period).
“Subordination of Management Agreement” shall mean, individually and/or collectively as the context may require, with respect to each Individual Property, that certain Mezzanine Subordination of Management Agreement and Management Fees, dated as of the date hereof, from Borrower, Mortgage Borrower and Operating Lessee (as applicable) to Agent and consented to by Manager, as the same may be amended, restated, replaced, supplemented or otherwise modified from time to time.
“Substitute Reserves” shall have the meaning set forth in Section 7.2(f) hereof.
“Survey” shall mean a survey of the Individual Property in question prepared by a surveyor licensed in the State and reasonably satisfactory to Lender and the company or companies issuing the related Title Insurance Policy, and containing a certification of such surveyor reasonably satisfactory to Lender.
“Taxes” shall mean all real estate and personal property taxes, assessments, water rates or sewer rents, now or hereafter levied or assessed or imposed against any Individual Property or part thereof.
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“Tenant” means the lessee of all or a portion of an Individual Property under a Lease. For the avoidance of doubt, “Tenant” shall exclude the Operating Lessee under the Operating Lease, the applicable individual Mortgage Borrower that is the tenant under the Ground Lease and the applicable individual Mortgage Borrower that is the tenant under the Master Lease.
“Threshold Amount” shall have the meaning set forth in Section 5.1.22 hereof.
“Title Insurance Policy” shall have the meaning set forth in the Mortgage Loan Agreement.
“Transfer” shall have the meaning set forth in Section 5.2.10(b) hereof.
“TRIPRA” shall have the meaning set forth in Section 6.1(a)(ix) hereof.
“UCC” or “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect in the State in which the Property is located.
“UCC Insurance Policy” shall mean an UCC-9 (Eagle) title insurance policy acceptable to Lender.
“Uniform System of Accounts” shall mean the most recent edition of the Uniform System of Accounts for Hotels, as adopted by the American Hotel and Motel Association.
“Units” shall mean the “Units” as defined in the Condominium Documents.
“U.S. Obligations” shall mean non-redeemable securities evidencing an obligation to timely pay principal and/or interest in a full and timely manner that are (a) direct obligations of the United States of America for the payment of which its full faith and credit is pledged, or (b) to the extent acceptable to the Approved Rating Agencies, other “government securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended.
“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” shall have the meaning set forth in Section 2.7(e) hereof.
“Viceroy Litigation Amount” shall have the meaning set forth in Section 5.1.3 hereof.
“Viceroy Manager” shall have the meaning set forth in Section 5.1.38(a) hereof.
“Viceroy Property” shall mean the Individual Property located at 000 X. 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
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“Waived Reserve Funds” shall have the meaning set forth in Section 7.2(f) hereof.
“World Wide Plaza Property” shall mean that certain real property and improvements constructed thereon located at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx.
“Write-down and Conversion Powers” means in relation to any Bail-In Legislation described in the EU Bail-In Legislation Schedule from time to time, the powers described as such in relation to that Bail-In Legislation in the EU Bail-In Legislation.
“WWP Fund” shall have the meaning set forth in the Mortgage Loan Agreement.
“Zoning Reports” shall mean each zoning report for the Properties delivered by Borrower to Lender in connection with the closing of the Loan, reasonably satisfactory in form and substance to Lender.
Section 1.2. Principles of Construction. All references to sections and schedules are to sections and schedules in or to this Agreement unless otherwise specified. All uses of the word “including” shall mean “including, without limitation” unless the context shall indicate otherwise. Unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise specified, all meanings attributed to defined terms herein shall be equally applicable to both the singular and plural forms of the terms so defined.
Capitalized terms used but not defined in this Agreement shall have the meaning set forth therefor in the Mortgage Loan Agreement. With respect to references to the Mortgage Loan Documents (including without limitation terms defined by cross-reference to the Mortgage Loan Documents), such references shall refer to the Mortgage Loan Documents as in effect on the Closing Date (and any such defined terms shall have the definitions set forth in the Mortgage Loan Documents as of the Closing Date) and no amendments, restatements, replacements, supplements, waivers or other modifications to or of the Mortgage Loan Documents shall have the effect of changing such references (including without limitation any such definitions) for the purposes of this Agreement except, in each case, to the extent Lender approves such amendment, restatement, replacement, supplement, waiver or other modification.
Notwithstanding anything stated herein to the contrary, any provisions in this Agreement cross-referencing or incorporating by reference provisions of the Mortgage Loan Documents shall be effective notwithstanding the termination of the Mortgage Loan Documents by payment in full of the Mortgage Loan.
To the extent that any terms, provisions or definitions of any Mortgage Loan Documents that are incorporated herein by reference are incorporated into the Mortgage Loan Documents by reference to any other document or instrument, such terms, provisions or definitions that are incorporated herein by reference shall at all times be deemed to incorporate each such term, provision and definition of the applicable other document or instrument as the same is set forth in such other document or instrument as of the Closing Date, without regard to any amendments, restatements, replacements, supplements, waivers or other modifications to or of such other document or instrument occurring after the Closing Date, to the extent approval of same is required by the Lender and except, in each case in which Lender’s approval is required, to the extent Lender approves such amendment, restatement, replacement, supplement, waiver or other modification occurring after the Closing Date.
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Borrower and Lender hereby acknowledge and agree that, as to any clauses or provisions contained in this Agreement or any of the other Loan Documents to the effect that Borrower (a) represents or warrants on behalf of, or covenants on behalf of, Mortgage Borrower or an Affiliate thereof, (b) shall cause Mortgage Borrower or an Affiliate thereof to act or refrain from acting, to comply with, to permit, to perform, to pay, to furnish, to cure, to remove, to observe, to deliver, to suffer, to initiate, to provide, to make available, to furnish in any manner, or (c) shall cause to occur or not to occur, or otherwise be obligated in any manner with respect to, any matters pertaining to Mortgage Borrower or an Affiliate thereof, such clause or provision is intended to mean, and shall be construed as meaning, by operation of Mortgage Borrower’s organizational documents, (i) that, in the context of clauses (a)-(c) above, Borrower shall cause Mortgage Borrower or such Affiliate to take such action (and in all cases throughout the Loan Documents the words “Borrower shall” or “Borrower shall not” (or words of similar meaning) means “Borrower shall cause Mortgage Borrower (or the applicable Affiliate)” or “Borrower shall not permit Mortgage Borrower (or the applicable Affiliate)” to so act or not to so act, as applicable, as the context may require (and any instance in the Loan Documents where such words already appear shall not be deemed or construed to mean that any other instance where such words do not appear were not intended to be interpreted as provided above), and (ii) that Borrower is obligated only in Borrower’s capacity with respect to Mortgage Borrower or such Affiliate thereof, and not directly with respect to Mortgage Borrower or such Affiliate thereof in any other manner which would cause Borrower to fail to satisfy the definition of Special Purpose Entity, any other similar covenants contained in Borrower’s or Mortgage Borrower’s organizational documents, or any other similar covenants contained in any Loan Documents.
Equity Owner and Lender hereby acknowledge and agree that, as to any clauses or provisions contained in this Agreement or any of the other Loan Documents to the effect that Equity Owner (a) represents or warrants on behalf of, or covenants on behalf of, Operating Lessee Pledgor or Operating Lessee, (b) shall cause Operating Lessee Pledgor or Operating Lessee to act or refrain from acting, to comply with, to permit, to perform, to pay, to furnish, to cure, to remove, to observe, to deliver, to suffer, to initiate, to provide, to make available, to furnish in any manner, or (c) shall cause to occur or not to occur, or otherwise be obligated in any manner with respect to, any matters pertaining to Operating Lessee Pledgor or Operating Lessee, such clause or provision is intended to mean, and shall be construed as meaning, by operation of Operating Lessee Pledgor’s and Operating Lessee’s organizational documents, (i) that, in the context of clauses (a)-(c) above, Equity Owner shall cause Operating Lessee Pledgor or shall cause Operating Lessee Pledgor to cause Operating Lessee (as applicable) to take such action (and in all cases throughout the Loan Documents the words “Equity Owner shall” or “Equity Owner shall not” (or words of similar meaning) means “Equity Owner shall cause Operating Lessee Pledgor or Operating Lessee (as applicable)” or “Equity Owner shall not permit Operating Lessee Pledgor or Operating Lessee (as applicable)” to so act or not to so act, as applicable, as the context may require (and any instance in the Loan Documents where such words already appear shall not be deemed or construed to mean that any other instance where such words do not appear were not intended to be interpreted as provided above), and (ii) that Equity Owner is obligated only in Equity Owner’s capacity with respect to Operating Lessee Pledgor and Operating Lessee, and not directly with respect to Operating Lessee Pledgor and Operating Lessee in any other manner which would cause Equity Owner to fail to satisfy the definition of Special Purpose Entity, any other similar covenants contained in Equity Owner’s, Operating Lessee Pledgor’s and Operating Lessee’s organizational documents, or any other similar covenants contained in any Loan Documents.
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ARTICLE II.
Section 2.1. Loan Commitment; Disbursement to Borrower.
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(b) In the event that Lender shall have reasonably determined (which determination shall be conclusive and binding upon Borrower absent manifest error) that by reason of circumstances affecting the interbank Eurodollar market LIBOR cannot be determined as provided in the definition of LIBOR as set forth herein, then Lender shall forthwith give notice thereof by telephone of such fact, confirmed in writing, to Borrower at least one (1) Business Day prior to the Determination Date. If such notice is given, the Loan shall be converted, from and after the first day of the next succeeding Interest Period, to a Prime Rate Loan bearing interest based on the Prime Rate in effect on the related Determination Date.
(c) If, pursuant to the terms of Section 2.2.4(b) above, the Loan has been converted to a Prime Rate Loan but thereafter Lender shall reasonably determine (which determination shall be conclusive and binding upon Borrower absent manifest error) that LIBOR can again be determined as provided in the definition of LIBOR as set forth herein, Lender may give notice thereof to Borrower and convert the Prime Rate Loan back to a Floating Interest Rate Loan by delivering to Borrower notice of such conversion no later than 11:00 a.m. (New York City Time), one (1) Business Day prior to the next succeeding Determination Date. If such notice is given, the Loan shall be automatically converted, from and after the first day of the next succeeding Interest Period, to a Floating Interest Rate Loan bearing interest based on LIBOR in effect on the related Determination Date. Notwithstanding any provision of this Agreement to the contrary, in no event shall Borrower have the right to elect to convert a Floating Interest Rate Loan to a Prime Rate Loan.
(d) Intentionally Omitted.
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(e) If any requirement of law or any change therein or in the interpretation or application thereof, shall hereafter make it unlawful for Lender to make or maintain a Floating Interest Rate Loan as contemplated hereunder, (i) the obligation of Lender hereunder to make a Floating Interest Rate Loan or to convert a Prime Rate Loan to a Floating Interest Rate Loan shall be canceled forthwith and (ii) any outstanding Floating Interest Rate Loan shall be converted automatically to a Prime Rate Loan on the first day of the next succeeding Interest Period or within such earlier period as required by law. Borrower hereby agrees promptly to pay Lender, upon demand, any additional amounts necessary to compensate Lender for any costs incurred by Lender in making any conversion in accordance with this Agreement, including, without limitation, any interest or fees payable by Lender to lenders of funds obtained by it in order to make or maintain the Floating Interest Rate Loan hereunder. Lender’s notice of such costs, as certified to Borrower, shall be conclusive absent manifest error.
(f) In the event that any change in any requirement of law or in the interpretation or application thereof, or compliance by Lender with any request or directive (whether or not having the force of law) hereafter issued from any central bank or other Governmental Authority:
(i) shall hereafter impose, modify, increase or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, or deposits or other liabilities in or for the account of, advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of Lender which is not otherwise included in the determination of LIBOR hereunder;
(ii) shall hereafter have the effect of reducing the rate of return on Lender’s capital as a consequence of its obligations hereunder to a level below that which Lender could have achieved but for such adoption, change or compliance (taking into consideration Lender’s policies with respect to capital adequacy) by any amount deemed by Lender to be material; or
(iii) shall hereafter subject Lender to any Impositions (other than (A) Indemnified Taxes, (B) Impositions described in clauses (b) through (d) of the definition of Excluded Taxes and (C) federal income taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;
and the result of any of the foregoing is to materially increase the cost to Lender of making, renewing or maintaining loans or extensions of credit or to reduce any amount receivable hereunder, then, in any such case, Borrower shall promptly pay Lender, upon demand, any additional amounts necessary to compensate Lender for such additional cost or reduced amount receivable which Lender deems to be material as determined by Lender in its reasonable discretion. If Lender becomes entitled to claim any additional amounts pursuant to this Section 2.2.4(f), Lender shall provide Borrower with not less than thirty (30) days written notice specifying in reasonable detail the event by reason of which it has become so entitled and the additional amount required to fully compensate Lender for such additional cost or reduced amount. A certificate as to any additional costs or amounts payable pursuant to the foregoing sentence submitted by Lender to Borrower shall be conclusive in the absence of manifest error. Subject to Section 2.7 hereof, this provision shall survive payment of the Note and the satisfaction of all other obligations of Borrower under this Agreement and the Loan Documents. Notwithstanding the foregoing, Lender may not require payment pursuant to this Section or otherwise unless Lender, at such time, has the general policy and practice of requiring such payment from other borrowers with loans similar to the Loan (not taking the amount or recourse nature of the loan into account) with Lender.
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(g) If Lender shall have determined in good faith that any change in any requirement of law with respect to any requirement of law regarding capital adequacy or compliance by Lender or any Person controlling Lender with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the date hereof shall have the effect of reducing the rate of return on Lender’s or such Person’s capital as a consequence of its obligations hereunder to a level below that which Lender or such Person could have achieved but for such change in any requirement of law or compliance (taking into consideration Lender’s or such Person’s policies with respect to capital adequacy) by an amount deemed by Lender to be material, then from time to time, after submission by Lender to Borrower of a written request therefor, Borrower shall pay to Lender such additional amount or amounts as will compensate Lender or such Person for such reduction. Notwithstanding the foregoing, Lender may not require payment pursuant to this Section or otherwise unless Lender, at such time, has the general policy and practice of requiring such payment from other borrowers with loans similar to the Loan (not taking the amount or recourse nature of the loan into account) with Lender.
(h) Borrower agrees to indemnify Lender and to hold Lender harmless from any loss or expense which Lender sustains or incurs as a consequence of (i) any default by Borrower in payment of the principal of or interest on a Floating Interest Rate Loan, including, without limitation, any such loss or expense arising from interest or fees payable by Lender to lenders of funds obtained by it in order to maintain a Floating Interest Rate Loan hereunder, (ii) except in connection with a Casualty or Condemnation, any prepayment (whether voluntary or mandatory) of the Floating Interest Rate Loan on a day that (A) is not a Payment Date or (B) is a Payment Date if Borrower did not give the prior written notice of such prepayment required pursuant to the terms of this Agreement, including, without limitation, such loss or expense arising from interest or fees payable by Lender to lenders of funds obtained by it in order to maintain the Floating Interest Rate Loan hereunder and (iii) the conversion pursuant to the terms hereof of the Floating Interest Rate Loan to the Prime Rate Loan on a date other than the Payment Date, including, without limitation, such loss or expenses arising from interest or fees payable by Lender to lenders of funds obtained by it in order to maintain a Floating Interest Rate Loan hereunder (the amounts referred to in clauses (i), (ii) and (iii) are herein referred to collectively as the “Breakage Costs”); provided, however, Borrower shall not indemnify Lender from any loss or expense arising from Lender’s willful misconduct or gross negligence. The calculation of any sums which Lender is entitled to receive pursuant to this Section 2.2.4(h) shall be binding and conclusive on Borrower absent manifest error. This provision shall survive payment of the Note in full and the satisfaction of all other obligations of Borrower under this Agreement and the other Loan Documents.
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(b) Borrower shall comply with all of its obligations under the terms and provisions of the Interest Rate Cap Agreement. All amounts paid by the Acceptable Counterparty under the Interest Rate Cap Agreement to Borrower or Lender shall be deposited directly into the Mezzanine Deposit Account. Borrower shall take all actions reasonably requested by Lender to enforce Lender’s rights under the Interest Rate Cap Agreement in the event of a default by the Acceptable Counterparty and shall not waive, amend or otherwise modify any of its rights thereunder.
(c) In the event of any downgrade, withdrawal or qualification of the rating of the Acceptable Counterparty by any Approved Rating Agency below the minimum rating set forth in the definition of “Acceptable Counterparty,” Borrower shall replace the Interest Rate Cap Agreement with a Replacement Interest Rate Cap Agreement not later than ten (10) Business Days following receipt of notice from Lender of such downgrade, withdrawal or qualification. Borrower shall provide with respect to any Replacement Interest Rate Cap Agreement an assignment of interest rate cap agreement with respect thereto in the form of the Assignment of Interest Rate Cap Agreement, together with an opinion of counsel meeting with requirements of Section 2.2.8(f) hereof.
(d) Each Interest Rate Cap Agreement shall contain the following language or its equivalent: “In the event of any downgrade, withdrawal or qualification of the rating of the Counterparty below (i) a long-term unsecured debt rating of not less than “A-” by S&P and a short-term senior unsecured debt rating of at least “A-1” from S&P, and (ii)(x) a long-term unsecured debt rating of not less than “A3” from Xxxxx’x and a short-term senior unsecured debt rating of at least “P1” from Xxxxx’x or (y) if no short-term debt rating exists, a long-term senior unsecured debt rating of at least “A1” from Xxxxx’x, the Counterparty must, within ten (10) Business Days, find a replacement Counterparty, at the Counterparty’s sole cost and expense, acceptable to each Rating Agency and Borrower; provided that, notwithstanding such a downgrade, withdrawal or qualification, unless and until the Counterparty transfers the Interest Rate Cap Agreement to a replacement Counterparty, the Counterparty will continue to perform its obligations under the Interest Rate Cap Agreement. Failure to satisfy the foregoing shall constitute an “Additional Termination Event” as defined by Section 5(b)(vi) of the ISDA Master Agreement, with the Counterparty as the “Affected Party.”” In the event that a counterparty is required pursuant to the terms of an Interest Rate Cap Agreement to (i) deliver collateral as specified in the applicable Interest Rate Cap Agreement, or (ii) find a replacement counterparty, Borrower covenants and agrees that Borrower shall seek Lender’s approval with respect thereto and shall not approve or consent to the foregoing unless and until Borrower receives Lender’s prior written approval not to be unreasonably withheld, conditioned or delayed and shall approve or consent to the foregoing upon receipt of Lender’s prior written approval.
(e) In the event that Borrower fails to purchase and deliver to Lender the Interest Rate Cap Agreement or fails to maintain the Interest Rate Cap Agreement in accordance with the terms and provisions of this Agreement, Lender may purchase the Interest Rate Cap Agreement and the cost incurred by Lender in purchasing such Interest Rate Cap Agreement shall be paid by Borrower to Lender with interest thereon at the Default Rate from the date such cost was incurred by Lender until such cost is reimbursed by Borrower to Lender.
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(f) In connection with the Interest Rate Cap Agreement, Borrower shall obtain and deliver to Lender an opinion from counsel (which counsel may be in-house counsel for the Acceptable Counterparty) for the Acceptable Counterparty (upon which Lender and its successors and assigns may rely) reasonably acceptable to Lender which shall provide, in relevant part, that:
(i) the Acceptable Counterparty is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or formation and has the organizational power and authority to execute and deliver, and to perform its obligations under, the Interest Rate Cap Agreement;
(ii) the execution and delivery of the Interest Rate Cap Agreement by the Acceptable Counterparty, and any other agreement which the Acceptable Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been and remain duly authorized by all necessary action and do not contravene any provision of its certificate of incorporation or by-laws (or equivalent organizational documents) or any law, regulation or contractual restriction binding on or affecting it or its property;
(iii) all consents, authorizations and approvals required for the execution and delivery by the Acceptable Counterparty of the Interest Rate Cap Agreement, and any other agreement which the Acceptable Counterparty has executed and delivered pursuant thereto, and the performance of its obligations thereunder have been obtained and remain in full force and effect, all conditions thereof have been duly complied with, and no other action by, and no notice to or filing with any governmental authority or regulatory body is required for such execution, delivery or performance; and
(iv) the Interest Rate Cap Agreement, and any other agreement which the Acceptable Counterparty has executed and delivered pursuant thereto, has been duly executed and delivered by the Acceptable Counterparty and constitutes the legal, valid and binding obligation of the Acceptable Counterparty, enforceable against the Acceptable Counterparty in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
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(a) Except as otherwise provided in this Section 2.4.1, Section 2.4.2, Section 2.5.2 and Section 7.9.3 hereof, Borrower shall not have the right to prepay the Loan in whole or in part.
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(b) Borrower may prepay the Loan in whole or in part, without payment of any prepayment premium or spread maintenance premium or any other fee or penalty, provided that (a) no Event of Default or Mortgage Loan Event of Default exists (unless Borrower is repaying the Debt in full and Mortgage Borrower is repaying the Mortgage Loan Debt in full concurrently therewith); (b) Borrower gives Lender not less than thirty (30) and not more than sixty (60) Business Days prior written notice of the amount of the Loan that Borrower intends to prepay; and (c) Borrower pays Lender, in addition to the outstanding principal amount of the Loan to be prepaid, (i) all interest which would have accrued on the amount of the Loan to be paid through and including the last day of the Interest Period in which such prepayment occurs, or, if such prepayment occurs on a Payment Date, through and including the last day of the Interest Period related to such Payment Date; and (ii) all other sums due and payable under this Agreement, the Note, and the other Loan Documents, including, but not limited to the Breakage Costs and all of Lender’s reasonable costs and expenses (including reasonable attorney’s fees and disbursements) incurred by Lender in connection with such prepayment. If a notice of prepayment is given by Borrower to Lender pursuant to this Section 2.4.1(b), the amount designated for prepayment and all other sums required under this Section 2.4.1(b) shall be due and payable on the proposed prepayment date.
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(a) Borrower shall provide (or cause to be provided to) Lender with at least ten (10) Business Days’ but no more than ninety (90) days’ prior written notice of its request to obtain a release of the Release Collateral, which notice shall identify the Release Collateral and the date upon which it desires to release such Release Collateral (the “Release Date”);
(b) Borrower shall prepay the Loan in an amount equal to the Release Amount for such Release Collateral (together with all accrued and unpaid interest on the principal amount being prepaid, if any, and interest that would have accrued on such prepaid amount through and including the last day of the Interest Period related to the Payment Date next occurring following the date of prepayment);
(c) Concurrently with the payment by Borrower of the Release Amount, provided the Mortgage Loan is outstanding, Mortgage Borrower shall prepay the Mortgage Loan in an amount equal to the Mortgage Loan Release Amount for the associated Mortgage Loan Release Property (together with any related interest, fees, or other amounts payable under the Mortgage Loan Documents in connection with such prepayment, including, to the extent such prepayment is made on a date other than a Payment Date, interest which would have accrued on the outstanding principal balance of the applicable Mortgage Loan through the end of the related interest period pursuant to the applicable Mortgage Loan Documents);
(d) Subsequent to such release, (i) each Individual Borrower (other than the Individual Borrower that owns the Release Collateral) shall continue to be a Special Purpose Entity pursuant to, and in accordance with, Section 4.1.30 hereof and (ii) each Mortgage Borrower (other than the Mortgage Borrower that owned the Release Property) shall continue to be a Special Purpose Entity pursuant to, and in accordance with, Section 4.1.30 of the Mortgage Loan Agreement;
(e) Intentionally omitted;
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(f) Borrower shall submit to Lender, not less than ten (10) Business Days prior to the Release Date, a partial release of Lien (and related Loan Documents) for such Release Collateral reasonably satisfactory to Lender for execution by 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, (ii) will not impair or otherwise adversely affect the Liens and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and Collateral subject to the Loan Documents not being released) and (iii) that the terms and conditions of this Section 2.5.2 have been satisfied with respect to such release;
(g) After giving effect to such release (including the amount prepaid in clause (b) above), the Debt Yield for the Properties and the Collateral then remaining subject to the Liens of the Security Instruments and the Pledge Agreement, respectively, for the twelve (12) full calendar months immediately preceding the month in which the Release Date occurs shall be equal to or greater than 6.75%; provided that, subject to the terms and conditions of Section 2.4 of this Agreement, Borrower shall be permitted to partially prepay the Loan pro rata (and, with respect to the Mortgage Loan, Mortgage Borrower shall concurrently partially prepay the Mortgage Loan pro rata) in an amount sufficient to cause the Loan and the Mortgage Loan to satisfy the Debt Yield requirements set forth herein;
(h) Lender shall have received evidence that the Release Collateral shall be conveyed in an arm’s length transfer to a Person other than an Individual Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, Equity Owner, Guarantor or any of their respective Affiliates, provided that, if Borrower shall have provided to Lender evidence that (i) the board of directors of Guarantor approved the transfer of the Release Collateral to an Affiliate of Individual Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, Equity Owner or Guarantor and (ii) the applicable Individual Borrower or Guarantor engaged a third-party reputable and experienced commercial real estate broker to market and list the Release Collateral for sale in connection with a release pursuant to this Section 2.5.2, the Release Collateral may be conveyed to an Affiliate of Individual Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, Equity Owner or Guarantor in connection with such release;
(i) Borrower shall reimburse Lender and Servicer for any out-of-pocket costs and expenses of Lender and Servicer arising from such release (including reasonable attorneys’ fees and expenses and disbursements incurred in connection with the release of the Release Collateral from the Lien of the Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith (if applicable)) and Borrower shall have paid, in connection with such release, (i) all recording charges, filing fees, taxes or other expenses payable in connection therewith, if any, (ii) all out-of-pocket costs and expenses of the Rating Agencies incurred with respect to such release, and (iii) to any Servicer, the current fee being assessed by such Servicer to effect such release (not to exceed $5,000 per Release Collateral), it being agreed that Borrower shall be responsible for the payment of all such costs and expenses whether or not the proposed release of such Release Collateral actually occurs;
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(j) If Lender reasonably determines that such applicable release pursuant to this Section 2.5.2 would be reasonably likely to adversely affect Lender’s rights, benefits or protections under the applicable owner’s Title Insurance Policy and/or the UCC Insurance Policy with respect to the Collateral not subject to such release, including, without limitation, the priority of the Pledge Agreement and/or the incurrence of any Liens on the Collateral not subject to such release, and therefore if reasonably requested by Lender, Borrower shall deliver to Lender an endorsement to the applicable owner’s Title Insurance Policy and/or UCC Insurance Policy (to the extent available in the State of New York at no material additional cost) (i) extending the effective date of such policy to the Release Date; (ii) confirming no change in the priority of the Pledge Agreement on the balance of the Collateral (exclusive of the Release Collateral) or in the amount of the insurance or the coverage of the Collateral (exclusive of the Release Collateral) under the policy; (iii) showing no Liens or survey exceptions not previously approved by Lender other than the Permitted Encumbrances or such other exceptions as may be entered into in accordance with the terms hereof; and (iv) otherwise in form and substance reasonably acceptable to Lender;
(k) Not less than five (5) Business Days prior to the Release Date, Borrower delivers (or causes to be delivered) to Lender copies of approvals to the release executed by any Persons other than Lender holding Liens encumbering the Release Collateral or holding any other interest in the Release Collateral that would be affected by the release, if any, if and to the extent such approval is required pursuant to the terms of any loan agreement, security instrument or other documents evidencing or securing such Lien;
(l) To the extent an Individual Borrower seeks to release its applicable Collateral pursuant to this Section 2.5.2 and is the counterparty to the Interest Rate Cap Agreement, such Individual Borrower shall assign the Interest Rate Cap Agreement to any remaining Individual Borrower which has not released its applicable Collateral pursuant to this Section 2.5.2 in accordance with the terms and conditions of the Interest Rate Cap Agreement; and
(m) All conditions to the release of an Individual Property and the related Release Collateral set forth in the Mortgage Loan Documents shall have been satisfied or waived in accordance therewith.
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Section 2.7. Withholding Taxes.
(ii) Without limiting the generality of the foregoing, in the event that the Borrower is a U.S. Borrower,
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(A) any Lender that is a U.S. Person shall deliver to the Borrower on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax;
(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower), whichever of the following is applicable:
(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed originals of IRS Form W-8BEN or Form W8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Imposition pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or Form W8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Imposition pursuant to the “business profits” or “other income” article of such tax treaty;
(2) executed originals of IRS Form W-8ECI;
(3) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or Form W8BEN-E; or
(4) to the extent a Foreign Lender is a partnership or is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or Form W8BEN-E, a U.S. Tax Compliance Certificate, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate on behalf of each such direct and indirect partner;
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(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit the Borrower to determine the withholding or deduction required to be made; and
(D) if a payment made to a Lender under any Loan Document would be subject to U.S. federal withholding tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower at the time or times prescribed by law and at such time or times reasonably requested by the Borrower such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower as may be necessary for the Borrower to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower in writing of its legal inability to do so.
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(a) no Event of Default shall have occurred and be continuing at the time the Extension Option is exercised and at the time that the applicable extension occurs;
(b) Borrower shall provide Lender with written revocable notice of its election to extend the Maturity Date as aforesaid not later than thirty (30) days and not earlier than ninety (90) days prior to the date the Loan is then scheduled to mature, provided that if Borrower shall subsequently revoke such notice, Borrower shall be responsible for Lender’s reasonable out-of-pocket costs and expenses incurred in connection with same;
(c) if the Interest Rate Cap Agreement is scheduled to mature prior to the Extended Maturity Date, Borrower shall (i) modify the existing Interest Rate Cap Agreement or obtain and deliver to Lender on or prior to the first day of the Extension Term, one or more Replacement Interest Rate Cap Agreements from an Acceptable Counterparty which modified Interest Rate Cap Agreement or Replacement Interest Rate Cap Agreement (as applicable) shall have a LIBOR strike price equal to the Strike Price, be effective commencing on the first date of the Extension Option and shall have a maturity date not earlier than the Extended Maturity Date after giving effect to the option then being exercised and (ii) deliver an assignment of interest rate cap agreement with respect to any Replacement Interest Rate Cap Agreement in form and substance substantially similar to the Assignment of Interest Rate Cap Agreement delivered on the Closing Date, together with legal opinions of counsel to the counterparty and Borrower as reasonably required by Lender;
(d) Borrower shall have delivered to Lender together with its notice pursuant to subsection (b) of this Section 2.8 and at Lender’s reasonable request, on the commencement date of the Extension Option, an Officer’s Certificate in form acceptable to the Lender certifying that each of the representations and warranties of Borrower contained in the Loan Documents is true, complete and correct in all material respects as of the giving of the notice to the extent such representations and warranties are not matters which by their nature can no longer be true and correct as a result of the passage of time or identify exceptions thereto as appropriate which are reasonably acceptable to Lender;
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(e) the Debt Yield shall equal or exceed 7.25%;
(f) prior to or simultaneously with the consummation of the Extension Option, Borrower shall pay to Lender an extension fee equal to 0.25% of the then outstanding principal balance of the Loan, which extension fee shall be deemed earned by Lender and non-refundable upon receipt;
(g) the Spread shall be increased by 0.25% for the Extension Term;
(h) if Mortgage Borrower has neither withdrawn the WWP Fund and consummated the Equity Purchase, nor paid to Mortgage Lender or Lender the WWP Fund to be applied to pay down the Mortgage Loan and Loan (on a pro rata basis provided that no Event of Default has occurred and is continuing), in either case, in accordance with Section 7.9.2 of the Mortgage Loan Agreement, then Borrower shall cause Mortgage Borrower to deliver to Mortgage Lender or Lender the WWP Fund for application to prepayment of the Mortgage Loan and Loan (on a pro rata basis provided that no Event of Default has occurred and is continuing), without payment of any prepayment premium or spread maintenance premium or any other fee or penalty, in accordance with the terms and conditions set forth in Section 2.4 hereof and Section 2.4 of the Mortgage Loan Agreement;
(i) Borrower shall pay all of Lender’s reasonable out-of-pocket costs and expenses actually incurred in connection with processing and documenting the Extension Option (including, without limitation, Lender’s reasonable legal fees), regardless of whether the Extension Option is successfully exercised or not; and
(j) provided the Mortgage Loan is outstanding, the Mortgage Loan Extension Option shall have been exercised in accordance with the terms of the Mortgage Loan Agreement, and Borrower shall have provided to Lender evidence of such exercise of the Mortgage Loan Extension Option.
NOTE | PRINCIPAL XXXXXX | |||
X-0 | $ | 44,000,000.00 | ||
A-2 | $ | 55,000,000.00 | ||
A-3 | $ | 11,000,000.00 | ||
B-1 | $ | 60,000,000.00 | ||
B-2 | $ | 75,000,000.00 | ||
B-3 | $ | 15,000,000.00 |
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ARTICLE III.
INTENTIONALLY OMITTED
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
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(c) Each Borrower and Equity Owner covenants and agrees that Borrower and Equity Owner shall provide Lender with ten (10) Business Days’ prior written notice prior to the removal of an Independent Director of any Borrower, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor and/or Equity Owner.
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4.1.38. Intentionally Omitted.
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4.1.41. Intentionally Omitted.
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(a) The Condominium has been legally and validly created pursuant to all Legal Requirements and the Condominium Documents.
(b) Each of the Condominium Documents is in full force and effect. To Borrower’s knowledge, neither Mortgage Borrower nor any other party to any of the Condominium Documents is in default under any of the material provisions of any of the Condominium Documents, and there are no conditions which, with the passage of time or the giving of notice, or both, would constitute a default thereunder. None of the Condominium Documents has been modified, amended or supplemented except as set forth on Schedule IX attached hereto. Borrower has delivered to Lender a true, complete and correct copy of each of the Condominium Documents.
(c) All conditions of the Condominium Documents which were required to be satisfied, and all approvals which were required to be given in connection with the making of the Loan, as of the date hereof, have been satisfied, given or waived. The Condominium Documents are valid and enforceable.
(d) All fees, dues, charges and assessments, whether annual, monthly, regular, special or otherwise, including, any “Common Charges” (as such term is defined in the Condominium Documents) (collectively, the “Common Charges”) payable by Mortgage Borrower are set forth on Schedule IX attached hereto and have been fully paid to date.
(e) The applicable Mortgage Borrower is the owner of the Units as set forth on Schedule IX attached hereto. No Affiliate of Mortgage Borrower or Borrower (other than the applicable Mortgage Borrower) owns any Units in the Condominium.
(f) There are currently no special or other extraordinary Common Charges assessed against any Mortgage Borrower (other than regular, monthly Common Charges). To Borrower’s knowledge, the Board has not established a separate working capital or any other similar type of reserve. There are no judgments, suits or claims pending, filed or threatened against the Board and there are no set-offs, claims, counterclaims or defenses being asserted for the enforcement of the obligations of any party under the Condominium Documents which is reasonably likely to have a Material Adverse Effect. Neither the Board nor any other Person has any right of first refusal or option to purchase the Individual Property subject to the Condominium Documents.
(g) All of the members and officers of the Board are listed on Schedule IX attached hereto. The members of the Board appointed by Mortgage Borrower are designated as such on Schedule IX. The Board has the sole power and authority to act on behalf of, and bind, the Condominium. The Board and the Condominium with respect to the Property located at 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx and 000 X 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx are controlled by members thereof appointed by Mortgage Borrower. To Borrower’s knowledge, neither the Board nor the Condominium are party to any loan, credit agreement or other arrangement for any extension of credit, whether funded or to be funded.
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(a) Neither the Operating Lessor nor Operating Lessee is a party to equipment leases with respect to the Viceroy Property.
(b) Each of Operating Lessor and Operating Lessee has the right to use all patents, licenses, franchises, trademarks, trademark rights, trade names, trade name rights, trade secrets and copyrights (collectively, the “Intellectual Property”), if any, necessary to the conduct of its businesses, without known conflict with any patent, license, franchise, trademark, trade secret, trade name, copyright, or other proprietary right of any other Person. Any such Intellectual Property is fully protected and/or duly and properly registered, filed or issued in the appropriate office and jurisdictions for such registrations, filing or issuances. No material claim has been asserted by any Person with respect to the use of any such Intellectual Property, or challenging or questioning the validity or effectiveness of any such Intellectual Property.
(c) There are no: (i) collective bargaining agreements and/or other labor agreements to which Borrower or Mortgage Borrower is a party or to which Borrower or Mortgage Borrower may be bound; (ii) except as set forth on Schedule X attached hereto, collective bargaining agreements and/or other labor agreements to which the Viceroy Property, or any portion thereof, is bound, (iii) employment, profit sharing, deferred compensation, bonus, stock option, stock purchase, pension, retainer, consulting, retirement, health, welfare, or incentive plans and/or contracts to which Borrower, Mortgage Borrower or the Viceroy Property, or any portion thereof is a party, or by which either is or may be bound; or (iv) plans and/or agreements under which “fringe benefits” (including, but not limited to, vacation plans or programs, and related or similar dental or medical plans or programs, and related or similar benefits) are afforded to employees of the Mortgage Borrower, Borrower or the Viceroy Property, or any portion thereof. To Borrower’s knowledge, Mortgage Borrower has not violated any material Legal Requirements relating to the employment of labor, including those relating to wages, hours, collective bargaining and the payment and withholding of taxes and other sums as required by appropriate Governmental Authorities. To Borrower’s knowledge, the applicable Manager and its Affiliates have complied with the Employment Related Laws and Obligations. To Borrower’s knowledge, no employee employed at the Viceroy Property has asserted any material claim of violation of the collective bargaining agreement listed on Schedule X attached hereto or the Employment Related Laws and Obligations against the applicable Manager or any or its Affiliates that would reasonably be expected to have a Material Adverse Effect.
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ARTICLE V.
BORROWER AND EQUITY OWNER COVENANTS
Section 5.1. Affirmative Covenants
. From the date hereof and until payment and performance in full of all obligations of Borrower and, solely with respect to the Viceroy Property, Equity Owner, under the Loan Documents or the earlier release of the Lien of the Pledge Agreement encumbering the Collateral (and all related obligations) in accordance with the terms of this Agreement and the other Loan Documents, each Borrower and, solely with respect to the Viceroy Property, Equity Owner hereby covenants and agrees with Lender that:
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(a) furnish to Lender all instruments, documents, boundary surveys, footing or foundation surveys, certificates, plans and specifications, appraisals, title and other insurance reports and agreements, and each and every other document, certificate, agreement and instrument required to be furnished by such party, Mortgage Borrower or Operating Lessee pursuant to the terms of the Loan Documents or the Mortgage Loan Documents, as applicable, or which are reasonably requested by Lender in connection therewith;
(b) execute and deliver (or cause Mortgage Borrower or Operating Lessee, as applicable, to execute and deliver) to Lender such documents, instruments, certificates, assignments and other writings as may be reasonably necessary or desirable, to preserve and/or protect the collateral at any time securing or intended to secure the obligations of Borrower and Equity Owner under the Loan Documents, as Lender may reasonably require, including, without limitation, the execution and delivery of all such writings necessary to transfer any hospitality or liquor licenses with respect to the Property into the name of Lender or its designee after the occurrence of an Event of Default; and
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(c) do and execute (or cause Mortgage Borrower or Operating Lessee, as applicable, to do and execute) all and such further lawful and reasonable acts, conveyances and assurances for the better and more effective carrying out of the intents and purposes of this Agreement and the other Loan Documents, as Lender shall reasonably require from time to time. Upon receipt of an affidavit of an officer of Lender as to the loss, theft, destruction or mutilation of the Note or any other Loan Document which is not of public record, and indemnity in form and substance reasonably acceptable to Borrower and Lender, and, in the case of any such mutilation, upon surrender and cancellation of such Note or other applicable Loan Document, Borrower will issue, in lieu thereof, a replacement Note or other applicable Loan Document, dated the date of such lost, stolen, destroyed or mutilated Note or other Loan Document in the same principal amount thereof and otherwise of like tenor.
(b) Each of Borrower and Equity Owner will furnish to Lender annually, within ninety (90) days following the end of each Fiscal Year of Borrower and Equity Owner, respectively, a complete copy of Borrower’s and Mortgage Borrower’s, and Equity Owner’s, Operating Lessee Pledgor’s and Operating Lessee’s (as applicable) unaudited annual financial statements prepared by such party, in accordance with the Uniform System of Accounts with respect to the Viceroy Property, and reconciled in accordance with GAAP (or such other accounting basis acceptable to Lender) covering the Properties on a combined basis as well as each Individual Property and the Collateral for such Fiscal Year and containing statements of profit and loss for each of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee, the Properties and the Collateral and a balance sheet for each of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor and Operating Lessee. In addition to the foregoing, Borrower and Equity Owner shall provide on an Individual Property and Collateral basis statements setting forth the financial condition and the results of operations for the Properties and the Collateral for such Fiscal Year, and shall include, but not be limited to, amounts representing annual Net Cash Flow, Net Operating Income, Gross Income from Operations and Operating Expenses for its respective Properties and Collateral. Each annual financial statement shall be accompanied by an Officer’s Certificate certifying that each annual financial statement presents fairly the financial condition and the results of operations of each of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee, the Property and the Collateral (as applicable) being reported upon and that such financial statements have been prepared in accordance with the Uniform System of Accounts with respect to the Viceroy Property, and reconciled in accordance with GAAP and as of the date thereof whether there exists an event or circumstance which constitutes a Default or Event of Default under the Loan Documents executed and delivered by, or applicable to, Borrower or Equity Owner, and if such Default or Event of Default exists, the nature thereof, the period of time it has existed and the action then being taken to remedy the same.
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(c) Each of Borrower and Equity Owner will furnish, or cause to be furnished, to Lender on or before forty-five (45) days after the end of each calendar quarter the following items, accompanied by an Officer’s Certificate stating that such items are true, correct, accurate, and complete and fairly present the financial condition and results of the operations of each of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, the Properties and the Collateral (as applicable) on a combined basis as well as each Individual Property (subject to normal year-end adjustments), as applicable: (i) a rent roll for the subject quarter; (ii) quarterly and year-to-date operating statements (including a statement of Capital Expenditures) prepared for each calendar quarter, noting Net Cash Flow, Net Operating Income, Gross Income from Operations, and Operating Expenses (not including any contributions to the Replacement Reserve Fund, the FF&E Reserve Fund and the Rollover Reserve Fund), and, upon Lender’s reasonable request, other information necessary and sufficient to fairly represent the financial position and results of operation of the Properties during such calendar quarter to the extent such other information reasonably requested by Lender is in Borrower’s or Equity Owner’s (as applicable) possession or is available to or obtainable by Borrower or Equity Owner (as applicable) using commercially reasonable efforts, and containing a comparison of budgeted income and expenses and the actual income and expenses; and (iii) a calculation reflecting the annual Debt Service Coverage Ratio for the immediately preceding twelve (12)-month period as of the last day of such quarter and a calculation reflecting the Debt Yield as of the last day of such calendar quarter, in each case subject to verification by Lender. In addition, each Officer’s Certificate shall also state that the representations and warranties of Borrower, Equity Owner, Operating Lessee Pledgor and Operating Lessee (as applicable) set forth in Section 4.1.30 hereof or in Section 4.1.30 of the Mortgage Loan Agreement, as applicable, are true and correct as of the date of such certificate. On or before thirty (30) days after the end of each calendar quarter, each of Borrower and Equity Owner also will furnish, or cause to be furnished, to Lender the most current Xxxxx Travel Research Reports then available to Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee (as applicable) reflecting market penetration and relevant hotel properties competing with the Viceroy Property.
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(d) In addition, prior to a Securitization, or during the continuance of a Cash Sweep Period or Event of Default, on or before thirty (30) days after the end of each calendar month (other than with respect to January or the last calendar month of any quarter), each of Borrower and Equity Owner also will furnish, or cause to be furnished, to Lender (i) a rent roll for the subject month; (ii) monthly and year-to-date operating statements (including a statement of Capital Expenditures) prepared for such calendar month, noting Net Cash Flow, Net Operating Income, Gross Income from Operations, all Operating Expenses (not including any contributions to the Replacement Reserve Fund, the FF&E Reserve Fund and the Rollover Reserve Fund), and, upon Lender’s reasonable request, other information necessary and sufficient to fairly represent the financial position and results of operation of the Properties and the Collateral during such calendar month to the extent such other information reasonably requested by Lender is in Borrower’s, Equity Owner’s, Mortgage Borrower’s, Operating Lessee Pledgor’s or Operating Lessee’s (as applicable) possession or is available to or obtainable by such Person using commercially reasonable efforts, and containing a comparison of budgeted income and expenses and the actual income and expenses and specific detail on Rents for such calendar month. On or before thirty (30) days after the end of each calendar month, each of Borrower and Equity Owner also will furnish, or cause to be furnished, to Lender the most current Xxxxx Travel Research Reports then available to Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee (as applicable) reflecting market penetration and relevant hotel properties competing with the Viceroy Property.
(e) For each Fiscal Year, each Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) submit to Lender an Annual Budget not later than sixty (60) days prior to the end of the prior Fiscal Year (and with respect to the Annual Budget for the Fiscal Year commencing in 2017, within thirty (30) days of the Closing Date using diligent efforts, but no later than January 30, 2017) in form provided to Lender in connection with the underwriting for the Loan or otherwise reasonably satisfactory to Lender. The Annual Budget shall be subject to Lender’s prior written reasonable approval (each such Annual Budget, an “Approved Annual Budget”). In the event that Lender objects to a proposed Annual Budget submitted by Borrower, Equity Owner, Mortgage Borrower or Operating Lessee (as applicable) which requires the approval of Lender hereunder, Lender shall advise Borrower or Equity Owner (as applicable) of such objections within fifteen (15) days after receipt thereof (and deliver to Borrower or Equity Owner (as applicable) a reasonably detailed description of such objections) and Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly revise such Annual Budget and resubmit the same to Lender. Lender shall advise Borrower or Equity Owner (as applicable) of any objections to such revised Annual Budget within ten (10) days after receipt thereof (and deliver to Borrower or Equity Owner (as applicable) a reasonably detailed description of such objections) and Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly revise the same in accordance with the process described in this subsection until Lender approves the Annual Budget. Until such time that Lender approves a proposed Annual Budget which requires the approval of Lender hereunder, the most recently Approved Annual Budget shall apply; provided, that such Approved Annual Budget shall be adjusted to reflect actual increases in Taxes, Insurance Premiums and utilities expenses. In no event shall Borrower cause Mortgage Borrower or Equity Owner cause Operating Lessee (as applicable) to request funds in excess of the amounts contained in the Approved Annual Budget without the prior written consent of Lender.
(f) In the event that Mortgage Borrower or Operating Lessee (as applicable) must incur an extraordinary Operating Expense or Capital Expenditure not set forth in the Approved Annual Budget (each, an “Extraordinary Expense”), then Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a reasonably detailed explanation of such proposed Extraordinary Expense for Lender’s approval, which may be given or denied in Lender’s reasonable discretion.
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(g) If requested by Lender, Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall determine necessary or appropriate items required if the Securitization is offered publicly pursuant to Regulation AB under the Securities Act, or the Exchange Act, or any amendment, modification or replacement thereto) or required by any other legal requirements, in each case, in connection with any private placement memorandum, prospectus or other disclosure documents or materials or any filing pursuant to the Exchange Act in connection with the Securitization.
(h) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) furnish to Lender, within ten (10) Business Days after request (or as soon thereafter as may be reasonably possible), such further detailed information with respect to the operation of the applicable Properties and the financial affairs of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor and/or Operating Lessee (as applicable) as may be reasonably requested by Lender.
(i) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) furnish to Lender, within ten (10) Business Days after Lender’s request (or as soon thereafter as may be reasonably possible), financial and sales information from any tenant designated by Lender (to the extent such financial and sales information is required to be provided under the applicable Lease and same is received by Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee (as applicable) after request therefor).
(j) Borrower will cause Guarantor to furnish to Lender (a) annually, within ninety (90) days following the end of each Fiscal Year of Guarantor, financial statements audited by an independent certified public accountant, which shall include an annual balance sheet and profit and loss statement of Guarantor, in the form reasonably required by Lender, and (b) quarterly, within forty-five (45) days following the end of each calendar quarter, unaudited financial statements of Guarantor, in the form reasonably required by Lender.
(k) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) furnish to Lender prompt notice (containing reasonable detail) of any material changes in the financial or physical condition of the applicable Property or the applicable Collateral, including, but not limited to, any termination of a Major Lease and any termination or cancellation of terrorism or other insurance required by the Loan Documents.
(l) Any reports, statements or other information required to be delivered under this Agreement shall be delivered (i) via email with report files in electronic form of Microsoft Word, Microsoft Excel or .pdf format, and (ii) if requested by Lender and within the capabilities of Borrower’s, Equity Owner’s, Mortgage Borrower’s, Operating Lessee Pledgor’s or Operating Lessee’s (as applicable) data systems without change or modification thereto, in electronic form and prepared using a Microsoft Word for Windows or WordPerfect for Windows files (which files may be prepared using a spreadsheet program and saved as word processing files). Each of Borrower and Equity Owner agrees that Lender may disclose information regarding such party, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee, the Properties and the Collateral (as applicable) that is provided to Lender pursuant to this Section in connection with the Securitization to such parties requesting such information in connection with such Securitization.
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(m) For avoidance of doubt, each of Equity Owner and Operating Lessee shall not be required to provide any information to Agent or Lender hereunder or under any other provision of this Agreement with respect to any Borrower, any Mortgage Borrower or any Property other than the Viceroy Property.
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(b) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) use commercially reasonable efforts to deliver to Lender upon request, tenant estoppel certificates from each commercial Tenant leasing space at the Properties pursuant to a Major Lease if required pursuant to such Lease in form and substance provided in connection with the closing of the Loan, or consistent with the terms of the applicable Lease, or otherwise reasonably satisfactory to Lender; provided that Borrower and Equity Owner shall not be required to deliver (and cause Mortgage Borrower and Operating Lessee to deliver) such certificates more frequently than one (1) time in any calendar year.
(c) Borrower shall (and shall cause Mortgage Borrower to) use commercially reasonable efforts to deliver to Lender upon request, estoppel certificates from the Board of each Condominium in form and substance provided in connection with the closing of the Loan, or consistent with the terms of the applicable Condominium Documents, or otherwise reasonably satisfactory to Lender.
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(b) In the event that Lender reasonably believes that an environmental hazard exists on any Individual Property that may, in Lender’s sole discretion, endanger any Tenants or other occupants of such Individual Property or its guests or the general public or is reasonably likely to materially and adversely affect the value of such Individual Property, upon reasonable notice from Lender, Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to), at its expense, promptly cause an engineer or consultant reasonably satisfactory to Lender to conduct an environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and take any samples of soil, groundwater or other water, air, or building materials or any other invasive testing requested by Lender and promptly deliver the results of any such assessment, audit, sampling or other testing; provided, however, if such results are not delivered to Lender within a reasonable period, if an Event of Default has occurred and is continuing, or if Lender reasonably believes that an environmental hazard exists on such Individual Property that, in Lender’s sole judgment, endangers any Tenant or other occupant of such Individual Property or its guests or the general public or is reasonably likely to materially and adversely affect the value of such Individual Property, upon reasonable notice to Borrower and Equity Owner, Lender and any other Person designated by Lender, including but not limited to any receiver, any representative of a governmental entity, and any environmental consultant, shall have the right, but not the obligation, to enter upon such Individual Property at all reasonable times to assess any and all aspects of the environmental condition of such Individual Property and its use, including but not limited to conducting any environmental assessment or audit (the scope of which shall be determined in Lender’s sole and absolute discretion) and taking samples of soil, groundwater or other water, air, or building materials, and reasonably conducting other invasive testing. Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) cooperate with and provide Lender and any such Person designated by Lender with access to such Individual Property.
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(b) Borrower shall cause Mortgage Borrower and Equity Owner shall cause Operating Lessee to: (i) perform and/or observe, in all material respects, all of the covenants and agreements required to be performed and observed by Mortgage Borrower and Operating Lessee under the Management Agreement and do all things reasonably necessary to preserve and to keep unimpaired its material rights thereunder; (ii) promptly notify Lender of any material default under the Management Agreement of which it is aware; (iii) promptly deliver to Lender a copy of each financial statement, business plan, capital expenditures plan, notice, report and estimate received by it under the Management Agreement; and (iv) enforce the performance and observance in all material respects of all of the covenants and agreements required to be performed and/or observed by Manager under the Management Agreement, in a commercially reasonable manner.
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(c) With respect to the Properties self-managed by Borrower, Mortgage Borrower or its Affiliates as of the Closing Date, the applicable Borrower or Mortgage Borrower shall not engage any property manager with respect to any such Property or enter into any property management agreement with respect to any such Property without Lender’s prior written consent, which consent may not be unreasonably withheld or delayed but may be conditioned upon, among other things, the execution and delivery of a Replacement Management Agreement and amendments to the Loan Documents reasonably requested by Lender to evidence the same. Notwithstanding the foregoing, Borrower or Mortgage Borrower may engage a Qualified Manager with respect to such Properties without the prior written consent of Lender, provided that Borrower or Mortgage Borrower shall provide to Lender reasonable prior written notice of the identity of such Qualified Manager and, with respect to clause (b) of the defined term “Qualified Manager,” evidence reasonably required by Lender that such property manager is a Qualified Manager.
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5.1.27. Intentionally Omitted.
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(b) If Mortgage Borrower shall be in default beyond all applicable notice and cure periods under the Ground Lease, then, subject to the terms of the Ground Lease, and the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such default under the Ground Lease to be remedied and otherwise exercise any and all rights of Mortgage Borrower under the Ground Lease, as may be necessary to prevent or cure any default provided such actions are necessary to protect Lender’s interest under the Loan Documents, and Lender shall have the right to enter all or any portion of the Property at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such default, subject to the terms of the Ground Lease.
(c) The actions or payments of Lender to cure any default by Mortgage Borrower under the Ground Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Mortgage Borrower under the Ground Lease. All sums expended by Lender to cure any such default shall be paid by Borrower or Mortgage Borrower to Lender, upon demand, with interest on such sum at the then applicable Interest Rate from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge Agreement.
(d) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender in writing of the occurrence of any material default by Ground Lessor of which Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee has knowledge promptly after such Person becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Ground Lessor under the Ground Lease claiming the occurrence of any default by Mortgage Borrower under the Ground Lease. Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly deliver to Lender a copy of any such written notice of default.
(e) Within ten (10) days after receipt of written demand by Lender, Borrower shall cause Mortgage Borrower to use reasonable efforts to obtain from Ground Lessor and furnish to Lender the estoppel certificate of Ground Lessor stating (i) that the Ground Lease is unmodified and in full force and effect, (ii) the date through which rent has been paid, (iii) whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any, (iv) whether any fee mortgages are in effect, (v) whether a right of first offer is in effect, (vi) the current adjusted amounts for dollar amounts in the Ground Lease and (vii) the amount of any security deposits.
(f) Subject to the terms and conditions of the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may be reasonably required to permit Lender to cure any default under the Ground Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the Collateral. Subject to the terms and conditions of the Mortgage Loan Documents, Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage Borrower under or with respect to the Ground Lease, including, without limitation, the right to effectuate any extension or renewal of the Ground Lease, or to preserve any rights of Mortgage Borrower whatsoever in respect of any part of the Ground Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable).
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(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Ground Lease:
(i) The Lien of the Pledge Agreement attaches to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage Borrower’s rights, as debtor, to remain in possession of the Property.
(ii) Borrower shall not cause or permit Mortgage Borrower to, without Lender’s written consent, elect to treat the Ground Lease as terminated under subsection 365(h)(l) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(iii) Intentionally omitted.
(iv) If, pursuant to subsection 365(h) of the Bankruptcy Code, Mortgage Borrower seeks to offset, against the rent reserved in the Ground Lease, the amount of any damages caused by the nonperformance by Ground Lessor of any of its obligations thereunder after the rejection by Ground Lessor of the Ground Lease under the Bankruptcy Code, then Borrower shall not cause or permit Mortgage Borrower to effect any offset of the amounts so objected to by Lender. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this subsection, Borrower may proceed to cause Mortgage Borrower to offset the amounts set forth in Borrower’s notice.
(v) Subject to the rights of Mortgage Lender and Mortgage Borrower under the Mortgage Loan Documents, if any action, proceeding, motion or notice shall be commenced or filed in respect of Ground Lessor of all or any part of the Property in connection with any case under the Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection with such litigation. Borrower shall, upon demand, pay to Lender all costs and expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the Lien of the Pledge Agreement.
(vi) Borrower shall promptly, after obtaining knowledge of such filing notify Lender orally of any filing by or against Ground Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter promptly give written notice of such filing to Lender, setting forth any material information available to Borrower or Mortgage Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall promptly deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Borrower or Mortgage Borrower in connection with any such petition and any proceedings relating to such petition.
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(vii) if Lender, its nominee, designee, successor, or assignee acquires title and/or rights of Mortgage Borrower under the Ground Lease by reason of foreclosure of the Pledge Agreement, assignment in lieu of foreclosure or otherwise, such party shall (x) succeed to all of the rights of and benefits accruing to Mortgage Borrower under the Ground Lease, and (y) be entitled to exercise all of the rights and benefits accruing to Mortgage Borrower under the Ground Lease.
(b) If Mortgage Borrower shall be in default beyond all applicable notice and cure periods under the Master Lease, then, subject to the terms of the Master Lease and the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) shall grant Lender the right (but not the obligation), to cause such default under the Master Lease to be remedied and otherwise exercise any and all rights of Mortgage Borrower under the Master Lease, as may be necessary to prevent or cure any default provided such actions are necessary to protect Lender’s interest under the Loan Documents, and Lender shall have the right to enter all or any portion of the Property at such times and in such manner as Lender deems reasonably necessary, to prevent or to cure any such default, subject to the terms of the Master Lease.
(c) The actions or payments of Lender to cure any default by Mortgage Borrower under the Master Lease shall not remove or waive, as between Borrower and Lender, the default that occurred under this Agreement by virtue of the default by Mortgage Borrower under the Master Lease. All sums expended by Lender to cure any such default shall be paid by Mortgage Borrower or Borrower to Lender, upon demand, with interest on such sum at the then applicable Interest Rate from the date such sum is expended to and including the date the reimbursement payment is made to Lender. All such indebtedness shall be deemed to be secured by the Pledge Agreement.
(d) Borrower shall (or shall cause Mortgage Borrower to) notify Lender in writing of the occurrence of any material default by Master Lessor of which Borrower or Mortgage Borrower has knowledge promptly after Borrower or Mortgage Borrower becomes aware of the same, and the receipt by Mortgage Borrower of any notice from Master Lessor under the Master Lease claiming the occurrence of any default by Mortgage Borrower under the Master Lease. Borrower shall (or shall cause Mortgage Borrower to) promptly deliver to Lender a copy of any such written notice of default.
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(e) Within ten (10) days after receipt of written demand by Lender, Borrower shall cause Mortgage Borrower to use reasonable efforts to obtain from Master Lessor and furnish to Lender the estoppel certificate of Master Lessor stating (i) that the Master Lease is in full force and effect, (ii) the date through which rent has been paid, (iii) whether or not there are any defaults thereunder and specifying the nature of such claimed defaults, if any and (iv) any other information that Lender may reasonably request.
(f) Subject to the terms and conditions of the Mortgage Loan Documents, Borrower shall cause Mortgage Borrower to promptly execute, acknowledge and deliver to Lender such instruments as may be reasonably required to permit Lender to cure any default under the Master Lease or permit Lender to take such other action required to enable Lender to cure or remedy the matter in default and preserve the security interest of Lender under the Loan Documents with respect to the Collateral. Subject to the terms and conditions of the Mortgage Loan Documents, Borrower irrevocably appoints Lender as its true and lawful attorney-in-fact to do, in its name or otherwise, after the occurrence of an Event of Default for which Lender has accelerated the Loan, any and all acts and to execute any and all documents that are necessary to preserve any rights of Mortgage Borrower under or with respect to the Master Lease, including, without limitation, the right to effectuate any extension or renewal of the Master Lease, or to preserve any rights of Mortgage Borrower whatsoever in respect of any part of the Master Lease (and the above powers granted to Lender are coupled with an interest and shall be irrevocable).
(g) Notwithstanding anything to the contrary contained in this Agreement with respect to the Master Lease:
(i) The Lien of the Pledge Agreement attaches to all of Mortgage Borrower’s rights and remedies at any time arising under or pursuant to Subsection 365(h) of the Bankruptcy Code, including, without limitation, all of Mortgage Borrower’s rights, as debtor, to remain in possession of the Property.
(ii) Borrower shall not cause or permit Mortgage Borrower to, without Lender’s written consent, elect to treat the Master Lease as terminated under subsection 365(h)(l) of the Bankruptcy Code. Any such election made without Lender’s prior written consent shall be void.
(iii) Intentionally Omitted.
(iv) If, pursuant to subsection 365(h) of the Bankruptcy Code, Mortgage Borrower seeks to offset, against the rent reserved in the Master Lease, the amount of any damages caused by the nonperformance by Master Lessor of any of its obligations thereunder after the rejection by Master Lessor of the Master Lease under the Bankruptcy Code, then Borrower shall not cause or permit Mortgage Borrower to effect any offset of the amounts so objected to by Lender. If Lender has failed to object as aforesaid within ten (10) days after notice from Borrower in accordance with the first sentence of this subsection, Borrower may proceed to cause Mortgage Borrower to offset the amounts set forth in Borrower’s notice.
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(v) Subject to the rights of Mortgage Lender and Mortgage Borrower under the Mortgage Loan Documents, if any action, proceeding, motion or notice shall be commenced or filed in respect of Master Lessor of all or any part of the Property in connection with any case under the Bankruptcy Code, Lender and Borrower shall cooperatively conduct and control any such litigation with counsel agreed upon between Borrower and Lender in connection with such litigation. Borrower shall, upon demand, pay to Lender all costs and expenses (including reasonable attorneys’ fees and costs) actually paid or actually incurred by Lender in connection with the cooperative prosecution or conduct of any such proceedings. All such costs and expenses shall be secured by the Lien of the Pledge Agreement.
(vi) Borrower shall promptly, after obtaining knowledge of such filing notify Lender orally of any filing by or against Master Lessor of a petition under the Bankruptcy Code. Borrower shall thereafter promptly give written notice of such filing to Lender, setting forth any information available to Borrower or Mortgage Borrower as to the date of such filing, the court in which such petition was filed, and the relief sought in such filing. Borrower shall promptly deliver to Lender any and all notices, summonses, pleadings, applications and other documents received by Borrower or Mortgage Borrower in connection with any such petition and any proceedings relating to such petition.
(vii) if Lender, its nominee, designee, successor, or assignee acquires title and/or rights of Mortgage Borrower under the Master Lease by reason of foreclosure of the Pledge Agreement, assignment in lieu of foreclosure or otherwise, such party shall (x) succeed to all of the rights of and benefits accruing to Mortgage Borrower under the Master Lease, and (y) be entitled to exercise all of the rights and benefits accruing to Mortgage Borrower under the Master Lease.
(a) Borrower and Equity Owner each represents, covenants and warrants that it is the express intent of Mortgage Borrower and Operating Lessee that the Operating Lease constitute a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the sole interest of Operating Lessee in the Viceroy Property is as tenant under the Operating Lease and the owner of certain tangible and intangible assets. In the event that it shall be determined that the Operating Lease is not a lease under applicable real property laws and laws governing bankruptcy, insolvency and creditors’ rights generally, and that the interest of Operating Lessee in the Viceroy Property is other than that of tenant under the Operating Lease, Borrower and Equity Owner each hereby covenants and agrees that it shall cause Operating Lessee’s interest in the Viceroy Property, however characterized, to continue to be subject and subordinate to the lien of the Pledge Agreement on all the same terms and conditions as contained in the Operating Lease and the Pledge Agreement subject to the rights of Mortgage Lender under the Mortgage Loan Documents.
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(b) Borrower shall cause Mortgage Borrower and Equity Owner shall cause Operating Lessee to (i) promptly deliver to Lender a copy of any written notice of default under the Operating Lease received by any such party; and (ii) promptly give notice to Lender of any notice that Mortgage Borrower receives which indicates that Operating Lessee is terminating the Operating Lease or that Operating Lessee is otherwise discontinuing its operation of the Viceroy Property.
(c) Without Lender’s prior written consent until the Debt is paid in full, Borrower shall not cause or permit Mortgage Borrower and Equity Owner shall not cause or permit Operating Lessee to (a) surrender, terminate or cancel the Operating Lease, (b) reduce or consent to the reduction of the term of the Operating Lease to less than two (2) years beyond the Extended Maturity Date of the Loan, or (c) modify, change, supplement, alter or amend any material provision in the Operating Lease or any of Mortgage Borrower’s or Operating Lessee’s rights and remedies under the Operating Lease. Consent by Lender to one amendment, change, agreement or modification shall not be deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications.
(d) Borrower shall not permit or cause Mortgage Borrower and Equity Owner shall not permit or cause Operating Lessee to waive, excuse, condone or in any way release or discharge the other party under the Operating Lease of or from such party’s obligations, covenant and/or conditions under the Operating Lease without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.
(e) Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower (on behalf of itself and Mortgage Borrower) and Equity Owner (on behalf of itself and Operating Lessee) hereby assigns to Lender, as further security for the payment and performance of the Debt and observance of the terms, covenants and conditions of this Agreement and the other Loan Documents, all of the rights, privileges and prerogatives of Mortgage Borrower, as landlord, and Operating Lessee, as tenant, as applicable, under the Operating Lease to surrender the leasehold estates created by the Operating Lease or to terminate, cancel, modify, change, supplement, alter or amend the Operating Lease. Notwithstanding the foregoing provisions, the foregoing rights of Lender shall be exercisable by Lender only following, and during the continuance of, an Event of Default and subject to the rights of Mortgage Lender under the Mortgage Loan Documents,. Any surrender of the leasehold estate created by the Operating Lease or termination, cancellation, modification, change, supplement, alteration or amendment of the Operating Lease other than in accordance with the terms of this Section 5.1.36 shall be void and of no force or effect.
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(f) In the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower or Operating Lessee, any attempt by Borrower or Equity Owner to cause or permit Mortgage Borrower or Operating Lessee to surrender its leasehold estate, or any portion thereof, under the Operating Lease, or any attempt under such circumstances by Borrower or Equity Owner to cause or permit Mortgage Borrower or Operating Lessee to terminate, cancel or acquiesce in the rejection of the Operating Lease without the consent of Lender shall be null and void. Borrower and Equity Owner each hereby expressly (on behalf of itself and Mortgage Borrower and Operating Lessee) releases, assigns, relinquishes and surrenders unto Lender all of its right, power and authority to terminate, cancel, acquiesce in the rejection of, modify, change, supplement, alter or amend the Operating Lease in any respect, either orally or in writing, in the event of the bankruptcy, reorganization or insolvency of Mortgage Borrower or Operating Lessee, and any attempt on the part of Borrower or Equity Owner to cause or permit Mortgage Borrower or Operating Lessee to exercise any such right without the consent of Lender shall be null and void. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, each of Borrower and Equity Owner hereby irrevocably appoints Lender as its true and lawful attorney-in-fact which power of attorney shall be coupled with an interest, for the purpose of exercising the rights of Mortgage Borrower or Operating Lessee pursuant to Section 365(h) of the Bankruptcy Code or any successor to such Section (i) to obtain for the benefit of Mortgage Borrower or Operating Lessee or Lender a right to possession or statutory term of years derived from or incident to the Operating Lease, or (ii) to treat the Operating Lease as terminated.
(g) Notwithstanding the rejection of the Operating Lease by Mortgage Borrower, as debtor in possession, or by a trustee for Mortgage Borrower, pursuant to Section 365 of the Bankruptcy Code, neither the lien of the Security Instruments nor the Pledge Agreement nor Lender’s rights with respect to the Operating Lease shall be affected or impaired by reason thereof. In the event that Operating Lessee shall remain in possession of the Property following a rejection of the Operating Lease by Mortgage Borrower, as debtor in possession, or by a trustee for Mortgage Borrower, Equity Owner agrees that it shall not cause or permit Operating Lessee to exercise any right of offset against the rent payable under the Operating Lease, pursuant to Section 365(h)(2) of the Bankruptcy Code, without the prior consent of Lender thereto.
(h) Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, and during the existence of an Event of Default, Lender shall have the right, but shall be under no obligation, to exercise on behalf of Mortgage Borrower or Equity Owner any renewal or extension options under the Operating Lease if Mortgage Borrower and/or Operating Lessee shall fail to exercise any such options. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, and during the existence of an Event of Default, Equity Owner hereby absolutely and unconditionally assigns and grants to Lender (on behalf of itself and Operating Lessee) Operating Lessee’s irrevocable power of attorney, coupled with an interest, to exercise any renewal or extension options under the Operating Lease on behalf of and in the name of Operating Lessee following Operating Lessee’s failure to do so, and to take at any time any or all other actions on behalf of Operating Lessee required for the preservation of the Operating Lease. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower hereby absolutely and unconditionally assigns and grants to Lender (on behalf of itself and Mortgage Borrower) Mortgage Borrower’s irrevocable power of attorney, coupled with an interest, to exercise any renewal or extension options under the Operating Lease on behalf of and in the name of Mortgage Borrower following Mortgage Borrower’s failure to do so, and to take at any time following the occurrence and during the existence of an Event of Default any or all other actions on behalf of Mortgage Borrower required for the preservation of the Operating Lease.
(i) In connection with any Securitization or other sale, assignment, transfer or participation of all or any portion of the Loan and otherwise no more often than one time per calendar year, Borrower shall cause Mortgage Borrower and Equity Owner shall cause Operating Lessee to, within fifteen (15) days after request by Lender, execute, acknowledge and deliver a statement certifying the items listed in subsections (a) through (g) of this Section 5.1.36, with such exceptions as shall be necessary to cause such statement to be factually correct in all material respects.
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(j) Borrower shall cause Mortgage Borrower and Equity Owner shall cause Operating Lessee to, from time to time, deliver to Lender such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Lessee with the terms of the Operating Lease as may be reasonably requested by Lender.
5.1.37. Condominiums. With respect to each Condominium, Borrower hereby covenants as follows:
(a) Borrower shall promptly pay (or cause Mortgage Borrower to pay or cause to be paid) all Common Charges imposed on Mortgage Borrower pursuant to the Condominium Documents when the same become due and payable with respect to the Units owned by Mortgage Borrower. Borrower shall (or shall cause Mortgage Borrower to) deliver to Lender, promptly upon Lender’s request, evidence satisfactory to Lender that the Common Charges have been so paid or are not then delinquent with respect to the Units owned by Mortgage Borrower. Borrower shall (or shall cause Mortgage Borrower to) promptly notify Lender of (I) any adjustments made to the amount of Common Charges due under the Condominium Documents and (II) the imposition of any additional Common Charges under the Condominium Documents.
(b) Borrower acknowledges and agrees that the Units owned by Mortgage Borrower are within the definition of “Property” under this Agreement and, as such, Borrower shall cause Mortgage Borrower to cause the same to be insured in accordance with Article 6 of the Mortgage Loan Agreement and this Agreement.
(c) Borrower hereby covenants and agrees to cause Mortgage Borrower to provide to the Board on the Closing Date a copy of the applicable Security Instruments with respect to the Individual Property subject to the Condominium Documents, the name and address of Lender and Servicer, and a general description of the Loan.
(d) Borrower shall cause Mortgage Borrower to observe and perform (and where legally possible, cause the Board to observe and perform) each and every term to be observed or performed by Mortgage Borrower and/or the Board in all material respects pursuant to the Condominium Documents. Borrower shall not permit or cause Mortgage Borrower to waive, excuse, condone or in any way release or discharge any party to the Condominium Documents of or from such party’s obligations, covenant and/or conditions under the Condominium Documents without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned.
(e) Borrower shall cause Mortgage Borrower to obtain resignation letters from each voting member of the Board and any officers of the Condominium appointed by Mortgage Borrower to be held by Lender in escrow and submitted upon the occurrence and continuance of an Event of Default and Borrower shall cause Mortgage Borrower to obtain the agreement of the Board and the officers of the Condominium to have Lender appoint each voting member of the Board upon the occurrence and during the continuance of an Event of Default.
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(f) Borrower shall cause Mortgage Borrower to, and Mortgage Borrower shall use commercially reasonable efforts to cause the Board to, (i) maintain the Condominium and the Units in good condition and repair, (ii) promptly comply with all Legal Requirements applicable to the Condominium and the Units, (iii) subject to the Condominium Documents, promptly repair, replace or rebuild any part of the Condominium and the Units which may be damaged or destroyed by any Casualty or which may be affected by any Condemnation and Borrower shall not permit or cause Mortgage Borrower in such event to vote to not repair, restore or rebuild the Condominium without the prior written consent of Lender (not to be unreasonably withheld, conditioned or delayed), and (iv) subject to the Condominium Documents, complete and pay for, within a reasonable time, any structure at any time in the process of construction or repair on the Condominium and the Units.
(g) Without the prior written consent of Lender, which consent shall not be unreasonably withheld, delayed or conditioned, Borrower shall not permit or cause Mortgage Borrower to permit (to the extent Mortgage Borrower has the ability to control the same) any of the terms or provisions of the Condominium Documents to be modified or amended in any manner or permit the Condominium to be terminated, withdrawn from a condominium regime, partitioned, subdivided, expanded or otherwise modified. Consent by Lender to one amendment, change, agreement or modification shall not be deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications.
(h) Borrower shall cause Mortgage Borrower to use commercially reasonable efforts to cause the Board to allow Lender to examine the books, records and receipts of the Condominium upon ten (10) days’ prior written notice to the Borrower.
(i) Borrower shall (or shall cause Mortgage Borrower to) promptly deliver to Lender a true and correct copy of all notices of default received by Borrower or Mortgage Borrower with respect to any obligations or duty of Mortgage Borrower under the Condominium Documents. Borrower shall deliver (or shall cause Mortgage Borrower to deliver) to Lender each budget of the Condominium promptly after receipt thereof. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Lender shall have the right, but not the obligation, to cure any default by Mortgage Borrower under the Condominium Documents and Borrower shall cause Mortgage Borrower to use commercially reasonable efforts to cause the Board to provide Lender (i) forty-five (45) days to cure any monetary default and ninety (90) days to cure any non-monetary default, (ii) in the event that any such default cannot be cured by the payment of money or within such ninety (90) day period, such reasonable time as may be necessary to cure the default so long as Lender diligently pursues such cure to completion and continues to perform any monetary obligations of Mortgage Borrower to the Board, and (iii) in the event that such default is incapable of cure by Lender, such time as may be required for Lender to institute foreclosure of the Pledge Agreement with respect to the Collateral subject to the Condominium and/or otherwise enforce Lender’s rights and remedies under this Agreement, the Pledge Agreement and the other Loan Documents and prosecute such foreclosure and/or enforcement to conclusion.
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(j) To the extent that any approval rights, consent rights or other rights or privileges are granted to a mortgagee in the Condominium Documents, then such approval rights, consent rights or other rights, protections or privileges shall be deemed to be contained in this Agreement subject to the rights of Mortgage Lender under the Mortgage Loan Documents.
(k) Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Lender shall have the rights and privileges which Mortgage Borrower has as though Lender were in fact the owner of the Units owned by Mortgage Borrower and as if, where applicable, it were a “Declarant” under the Condominium Documents, and as if, where applicable, it were a member of the Board elected by Mortgage Borrower, which rights and privileges shall include, without limitation, all voting rights accruing to Mortgage Borrower (and the members of the Board elected by Mortgage Borrower) under the terms of the Condominium Documents. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, upon the occurrence and continuance of an Event of Default, Borrower hereby grants to Lender (on behalf of itself and Mortgage Borrower, subject to the terms of the Condominium Documents, the right to vote in place of Mortgage Borrower (if and to the extent Mortgage Borrower has a right to vote) and may exercise any and all of the rights and privileges of Mortgage Borrower. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Borrower hereby irrevocably appoints Lender as its attorney-in-fact, coupled with an interest, to vote as Mortgage Borrower’s proxy and to act with respect to all of said rights so long as such Event of Default continues hereunder or under any other Loan Documents and Lender has accelerated the Loan. Written notice from Lender to the Board shall be deemed conclusive as to the existence of such Event of Default and as to Lender’s rights and privileges under this Agreement. Notwithstanding anything contained herein to the contrary, nothing contained herein or otherwise shall render Lender liable for any Common Charges.
(l) The Board and the Condominium are not a party to any loan, credit agreement or other arrangement for any extension of credit, whether funded or to be funded. Borrower shall not cause or permit Mortgage Borrower to, without Lender’s prior written consent, permit the Board and/or the Condominium to incur any indebtedness or to encumber the Condominium in connection therewith (other than the Security Instruments granted by Mortgage Borrower to Mortgage Lender).
(m) In addition to Lender’s consent rights as specified in this Section 5.1.37, Borrower shall not cause or permit Mortgage Borrower to exercise any other approval, consent or voting right to which it is entitled under the Condominium Documents without obtaining Lender’s prior written consent (which consent shall not be unreasonably withheld or delayed).
(n) Borrower shall cause Mortgage Borrower to (and Mortgage Borrower shall cause the members of the Board elected by Mortgage Borrower to) attend each duly called meeting or special meeting of the Board. Subject to the rights of Mortgage Lender under the Mortgage Loan Documents, Lender shall have the right to participate in any arbitration proceeding instituted in accordance with the provisions of the Condominium Documents.
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(o) Borrower acknowledges and agrees that any management agreement with respect to the Condominium and/or the Units shall be required to be a Management Agreement (as defined herein) to the extent Mortgage Borrower has the ability to control the Board or the Condominium and shall be subject to the terms and conditions of this Agreement and the other Loan Documents.
5.1.38. Collective Bargaining Agreement.
(a) Borrower shall cause Mortgage Borrower and Equity Owner shall cause Operating Lessee to timely comply, and, to the extent that it has authority to do so, to require the Manager of the Viceroy Property (the “Viceroy Manager”) to comply, in all material respects, with all Employment Related Laws and Obligations as the same relate to the Viceroy Property.
(b) Borrower shall cause Mortgage Borrower and Equity Owner shall cause Operating Lessee to comply, and, to the extent that it has authority to do so, to require the Viceroy Manager to comply, in all material respects with the collective bargaining agreement set forth on Schedule X attached hereto with respect to the Viceroy Property; provided, however, that, neither Borrower nor Equity Owner may cause or permit Mortgage Borrower or Operating Lessee to take such actions or give consent for the Viceroy Manager to take such actions that would trigger multiemployer pension plan withdrawal liability to the CBA Multiemployer Plans under Title IV of ERISA without Lender’s consent. To the extent that such liability applies, Borrower shall cause Mortgage Borrower and Equity Owner shall cause Operating Lessee to pay or, to the extent that it has authority to do so, to require the Viceroy Manager to pay, its portion of any such liability in full in accordance with the provisions of ERISA, the collective bargaining agreement set forth on Schedule X attached hereto, the CBA Multiemployer Plans and any rules, regulations and by-laws established by such plans. Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) notify Lender of the occurrence of any material default or the occurrence of any condition which, but for the passage of time or the giving of notice, could result in a material default under the terms of the collective bargaining agreement.
(c) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) promptly notify Lender in the event Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee, the Viceroy Manager or any of their respective Affiliates receives written notice from a CBA Multiemployer Plan that it will be the subject of an audit by the CBA Multiemployer Plan. In the event Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee or the Viceroy Manager fails to timely pay its obligations under the CBA Multiemployer Plans, Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) continually provide Lender with up to date written information regarding Borrower’s, Equity Owner’s, Mortgage Borrower’s, Operating Lessee Pledgor’s, Operating Lessee’s or the Viceroy Manager’s actions to remedy any such failure.
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(d) Promptly upon receipt of same, Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) provide Lender with copies of the following: (i) all notices from the CBA Multiemployer Plan to Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee or the Viceroy Manager, (ii) notices from the applicable CBA Multiemployer Plan to Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee or the Viceroy Manager stating that such CBA Multiemployer Plan is determined to be in critical or endangered status, (iii) notices and demands from the CBA Multiemployer Plans to Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee or the Viceroy Manager regarding actual or potential withdrawal liability under any such CBA Multiemployer Plan, and (iv) written requests to the CBA Multiemployer Plans from Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee or the Viceroy Manager for estimates of potential or actual withdrawal liability under such CBA Multiemployer Plans along with copies of the actual estimates when received by Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee or the Viceroy Manager.
5.1.39. Required Repairs and Environmental Remediation.
(a) Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to), as applicable, perform the repairs and environmental remediation at the Properties, as more particularly set forth in the Property Condition Reports and the Environmental Reports set forth on Schedule XI attached hereto, as delivered to Lender on or prior to the Closing Date (such repairs and environmental remediation hereinafter referred to as “Required Repairs”). Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to), as applicable, complete the Required Repairs on or before the required deadline for each repair as set forth on Schedule XII attached hereto, provided that, with respect to item numbers 1 and 3-6 set forth on Schedule XII attached hereto, in the event that any such repair cannot be completed on or before the applicable deadline, Lender shall extend such deadline for such reasonable time as may be necessary to complete the repair so long as Borrower shall (or shall cause Mortgage Borrower to) and Equity Owner shall (or shall cause Operating Lessee to) diligently pursue such repair to completion. With respect to item numbers 1 and 6 set forth on Schedule XII attached hereto, to the extent any Tenant is responsible for such repairs under the applicable Lease with Mortgage Borrower, Borrower shall cause Mortgage Borrower to give notice of the repairs to be completed to the applicable Tenant and shall use commercially reasonable efforts to cause such Tenant to complete the repairs on or before the required deadline for such repair as set forth on Schedule XII attached hereto; provided, however, that Borrower and Mortgage Borrower shall be required to complete such repairs to the extent the applicable Tenant fails to do so. With respect to item numbers 2 and 5 set forth on Schedule XII attached hereto, to the extent any Board or other Unit owner is responsible for such repairs under the applicable Condominium Documents, Borrower shall cause Mortgage Borrower to give notice to the Board of the repairs to be completed and shall cause Mortgage Borrower to use commercially reasonable efforts to cause the Board (or cause the Board to cause the applicable Unit owners) to complete the repairs on or before the required deadline for such repair as set forth on Schedule XII attached hereto. It shall be an Event of Default under this Agreement if Borrower or Equity Owner (as applicable) (or Mortgage Borrower or Operating Lessee (as applicable)) does not complete the Required Repairs at the applicable Individual Property by the required deadline for each repair as set forth on Schedule XII attached hereto (as may be extended pursuant to this clause (a)), other than with respect to item numbers 2 and 5 set forth on Schedule XII attached hereto to the extent Borrower shall have given notice to the Board of the repairs to be completed and shall have used commercially reasonable efforts to cause the Board (or cause the Board to cause the applicable Unit owners) to complete the repairs on or before the required deadline for such repair.
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(b) Upon completion of the Required Repairs on or prior to the required deadline (as may be extended pursuant to clause (a) above), Lender shall have received (i) an Officer’s Certificate stating that all Required Repairs at the applicable Individual Property have been completed in good and workmanlike manner and in accordance with all applicable federal, state and local laws, rules and regulations, including, without limitation, Environmental Law, such Officer’s Certificate to be accompanied by a copy of any license, permit or other approval by any Governmental Authority required to commence and/or complete the Required Repairs, (ii) at Lender’s option, a title search for such Individual Property indicating that such Individual Property is free from all liens, claims and other encumbrances not previously approved by Lender, and (iii) such other evidence as Lender shall reasonably request that the Required Repairs at such Individual Property have been completed and paid in full.
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(b) Following the occurrence and during the continuance of an Event of Default, neither Borrower nor Equity Owner shall cause or permit Mortgage Borrower or Operating Lessee to exercise any rights, make any decisions, grant any approvals or otherwise take any action under the Management Agreement without the prior consent of Lender, which consent may be withheld in Lender’s sole discretion.
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(b) Each of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee and Guarantor further covenants and agrees to deliver to Lender such certifications or other evidence from time to time throughout the term of the Loan, as requested by Lender in its sole discretion, that (A) none of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee or Guarantor is subject to any state statute regulating investment of, or fiduciary obligations with respect to governmental plans which is a Similar Law and (B) with respect to each of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee and Guarantor, one or more of the following circumstances is true:
(i) Equity interests therein are publicly offered securities, within the meaning of 29 C.F.R. §2510.3-101(b)(2) as modified by Section 3 (42) of ERISA;
(ii) Less than twenty-five percent (25%) of each outstanding class of equity interests therein are held by “benefit plan investors” within the meaning of 29 C.F.R. §2510.3-101(f)(2), as modified by Section 3(42) of ERISA; or
(iii) Such Person qualifies as an “operating company” or a “real estate operating company” within the meaning of 29 C.F.R. §2510.3-101(c) or (e).
(c) Each of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee and Guarantor will fund or cause to be funded each Plan established or maintained thereby, or by any ERISA Affiliate thereof, as the case may be, so that there is never a failure to satisfy the minimum funding standards, within the meaning of Sections 412 or 430 of the Code or Section 302 of ERISA (whether or not such standards are waived) with respect to such Plans. As soon as possible and in any event within ten (10) days after the Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee or Guarantor knows that any ERISA Event has occurred with respect to any Plan, Lender will be provided with a statement, signed by an Authorized Representative of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee and/or Guarantor, describing said ERISA Event and the action which the Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee and/or Guarantor, or an ERISA Affiliate thereof, proposes to take with respect thereto.
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(b) Without the prior written consent of Lender and except to the extent otherwise expressly set forth in this Section 5.2.10, no Individual Borrower or Equity Owner shall, nor shall such party permit any Restricted Party to, do any of the following (individually or collectively, a “Transfer”), (i) sell, convey, mortgage, grant, bargain, encumber, pledge, assign, grant options with respect to, or otherwise transfer or dispose of (directly or indirectly, voluntarily or involuntarily, by operation of law or otherwise, and whether or not for consideration or of record) any Individual Property or any part thereof or any legal or beneficial interest therein or the Collateral or any part thereof or any legal or beneficial interest therein, or (ii) permit a Sale or Pledge of an interest in any Restricted Party or the Collateral or any part thereof or any legal or beneficial interest in any of them, other than pursuant to Leases of space in the Improvements to tenants in accordance with the provisions of Section 5.1.21 or the Pledge Agreement.
(c) A Transfer shall include, but not be limited to, (i) an installment sales agreement wherein Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee agrees to sell one or more Individual Properties or any part thereof or the Collateral or any part thereof for a price to be paid in installments; (ii) with the exception of the Operating Lease, an agreement by Mortgage Borrower or Operating Lessee leasing all or a substantial part of any Individual Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Mortgage Borrower’s or Operating Lessee’s right, title and interest in and to any Leases or any Rents; (iii) if a Restricted Party is a corporation, any merger, consolidation or Sale or Pledge of such corporation’s stock or the creation or issuance of new stock; (iv) if a Restricted Party is a limited or general partnership or joint venture, any merger or consolidation or the change, removal, resignation or addition of a general partner or the Sale or Pledge of the partnership interest of any general partner or any profits or proceeds relating to such partnership interest, or the Sale or Pledge of limited partnership interests or any profits or proceeds relating to such limited partnership interest or the creation or issuance of new limited partnership interests; (v) if a Restricted Party is a limited liability company, any merger or consolidation or the change, removal, resignation or addition of a managing member or non-member manager (or if no managing member, any member) or the Sale or Pledge of the membership interest of a managing member (or if no managing member, any member) or any profits or proceeds relating to such membership interest, or the Sale or Pledge of non-managing membership interests or the creation or issuance of new non-managing membership interests; (vi) if a Restricted Party is a trust or nominee trust, any merger, consolidation or the Sale or Pledge of the legal or beneficial interest in a Restricted Party or the creation or issuance of new legal or beneficial interests; (vii) the removal or the resignation of the Manager (including, without limitation, an Affiliated Manager) other than in accordance with Section 5.1.23 hereof; (viii) intentionally omitted; and (ix) if Mortgage Borrower or Borrower enters into, or the Property is subjected to, any PACE Loan.
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(d) Notwithstanding the provisions of this Section 5.2.10, provided that no Event of Default shall have occurred and be continuing, Lender’s consent shall not be required in connection with one or a series of Transfers, of not more than forty-nine percent (49%) of the direct or indirect interests (as the case may be) in a Restricted Party; provided, however, that, in the case of each such Transfer, (i) no such Transfer shall result in the change of Control in a Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee or Guarantor, (ii) the Properties shall be managed by a Qualified Manager pursuant to a the Management Agreement or a Replacement Management Agreement, (iii) if, as a result of the consummation of such Transfer, the organizational chart of Borrower attached hereto as Schedule V would no longer be accurate, Borrower shall deliver to Lender an updated organizational chart, together with an Officer’s Certificate, certifying that such updated organizational chart is true, correct and complete, (iv) in the event of any Transfer resulting in any Person and its Affiliates that did not own in the aggregate more than twenty percent (20%) of the direct or indirect interests in Borrower or Equity Owner prior to such transfer, owning in excess of twenty percent (20%) of the ownership interest in Borrower or Equity Owner, Borrower or Equity Owner (as applicable) shall provide to Lender, not less than ten (10) Business Days prior to such transfer, the name and identity of each proposed transferee, together with the names of its controlling principals, the social security number or employee identification number of such transferee and controlling principals, and such transferee’s and controlling principal’s home address or principal place of business, and home or business telephone number and (A) the proposed transferee must satisfy Lender’s then current “know your customer” standards and (B) Borrower shall have provided to Lender an Officer’s Certificate identifying the name and address of the proposed transferee and affirming that such proposed transferee is not a Embargoed Person. Notwithstanding the provisions of this Section 5.2.10, Lender’s consent shall not be required in connection with the pledges (or foreclosure of any thereof in accordance with the applicable pledge agreement, or the exercise of any other remedies pursuant to the Loan Documents, Mortgage Loan Documents or additional mezzanine loan documents entered into pursuant to Section 9.1.3(b) hereof, as applicable, or acceptance of a deed-in-lieu or an assignment-in-lieu of any thereof) pursuant to the Mortgage Loan Documents, the Pledge Agreement or this Agreement and no such pledge, foreclosure, exercise of remedies or assignment or transfer in lieu of foreclosure thereof shall in any way be deemed a violation of this Agreement. In addition, at all times, Guarantor must continue to Control Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee and any Affiliated Manager and own, directly or indirectly, at least a fifty-one percent (51%) legal and beneficial interest in Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee and any Affiliated Manager. Notwithstanding anything to the contrary herein, no withdrawal, removal or replacement of any advisor to Guarantor shall be deemed a Transfer or a change in Control or a violation of any provisions of this Agreement or the Loan Documents. Borrower and Guarantor shall provide to Lender reasonable prior written notice of such withdrawal, removal or replacement.
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(e) Notwithstanding the foregoing, neither Lender’s consent nor notice to Lender shall be required in connection with the issuance of any share or stock or any sale or transfer by a shareholder in any corporation or REIT of the shares of which are publicly traded on the New York Stock Exchange or any other nationally or internationally recognized securities exchange or quoted on a nationally or internationally recognized automated quotation system, including, without limitation, NASDAQ, nor shall any such sale, transfer or issuance of stock constitute a prohibited Transfer hereunder.
(f) Lender shall not be required to demonstrate any actual impairment of its security or any increased risk of default hereunder in order to declare the Debt immediately due and payable upon a Transfer without Lender’s consent.
(b) Borrower shall not (and shall not permit or cause Mortgage Borrower to) waive, excuse, condone or in any way release or discharge any Ground Lessor under any Ground Lease of or from such Ground Lessor’s obligations, covenant and/or conditions under the related Ground Lease without the prior written consent of Lender, which consent shall not be unreasonably withheld, conditioned or delayed.
(c) Borrower shall not (and shall not permit or cause Mortgage Borrower to), without Lender’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend the Ground Lease. Consent to one amendment, change, agreement or modification shall not be deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. Any acquisition of Ground Lessor’s interest in the Ground Lease by Mortgage Borrower, Borrower or any Affiliate of Mortgage Borrower or Borrower shall be accomplished by Mortgage Borrower or Borrower in such a manner so as to avoid a merger of the interests of lessor and lessee in the Ground Lease, unless consent to such merger is granted by Lender.
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(b) Borrower shall not (and shall not permit or cause Mortgage Borrower to), without Lender’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), surrender, terminate, forfeit, or suffer or permit the surrender, termination or forfeiture of, or change, modify or amend the Master Lease. Consent to one amendment, change, agreement or modification shall not be deemed to be a waiver of the right to require consent to other, future or successive amendments, changes, agreements or modifications. Any acquisition of Master Lessor’s interest in the Master Lease by Mortgage Borrower, Borrower or any Affiliate of Mortgage Borrower or Borrower shall be accomplished by Borrower or Mortgage Borrower in such a manner so as to avoid a merger of the interests of lessor and lessee in the Master Lease, unless consent to such merger is granted by Lender.
ARTICLE VI.
INSURANCE; CASUALTY; CONDEMNATION
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ARTICLE VII.
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(b) Borrower shall not, without obtaining the prior consent of Agent, further pledge, assign or grant any security interest in any Reserve Fund or the monies deposited therein or permit any lien or encumbrance to attach thereto, or any levy to be made thereon, or any UCC-1 Financing Statements, except those naming Agent as the secured party, to be filed with respect thereto.
(c) The Reserve Funds shall be held in an Eligible Account in Permitted Investments pursuant to an account control agreement reasonably acceptable to Lender and Borrower. All interest or other earnings on a Reserve Fund (with the exception of a Reserve Fund holding tax and insurance reserves) shall be added to and become a part of such Reserve Fund and shall be disbursed in the same manner as other monies deposited in such Reserve Fund. Borrower shall have the right to direct Agent to invest sums on deposit in the Eligible Account in Permitted Investments, provided (a) such investments are then regularly offered by Agent for accounts of this size, category and type, (b) such investments are permitted by applicable federal, state and local rules, regulations and laws, (c) the maturity date of the Permitted Investment is not later than the date on which the applicable Reserve Funds are required for payment of an obligation for which such Reserve Fund was created, and (d) no Event of Default shall have occurred and be continuing. Borrower shall be responsible for payment of any federal, state or local income or other tax applicable to the interest or income earned on the Reserve Funds (with the exception of a Reserve Fund holding tax and insurance reserves). No other investments of the sums on deposit in the Reserve Funds shall be permitted except as set forth in this Agreement. Borrower shall bear all reasonable costs associated with the investment of the sums in the account in Permitted Investments. Such costs shall be deducted from the income or earnings on such investment, if any, and to the extent such income or earnings shall not be sufficient to pay such costs, such costs shall be paid by Borrower promptly on demand by Agent or any Lender. Agent, each Lender and Servicer shall have no liability for the rate of return earned or losses incurred on the investment of the sums in Permitted Investments.
(d) Borrower shall indemnify Agent, each Lender and Servicer and hold Agent, each Lender and Servicer harmless from and against any and all actions, suits, claims, demands, liabilities, losses, damages, obligations and costs and expenses (including litigation costs and reasonable attorney’s fees and expenses) arising from or in any way connected with the Reserve Funds or the performance of the obligations for which the Reserve Funds were established. Borrower shall assign to Agent all rights and claims Borrower may have against all Persons supplying labor, materials or other services which are to be paid from or secured by the Reserve Funds; provided, however, that Agent may not pursue any such right or claim unless an Event of Default has occurred and remains uncured.
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(e) Notwithstanding anything to the contrary contained herein, any Reserve Funds remaining after the Debt has been paid in full shall be promptly delivered to Borrower.
(f) Notwithstanding anything to the contrary contained in this Agreement, if at any time and for any reason Mortgage Lender is not then requiring each of the Mortgage Loan Reserve Funds to be funded pursuant to the applicable provisions of the Mortgage Loan Agreement at a time when such Mortgage Loan Reserve Funds are required to be funded pursuant to the Mortgage Loan Agreement (it being agreed that the exercise of discretion by Mortgage Lender or Servicer under the Mortgage Loan Documents, as contemplated in the Mortgage Loan Documents, shall not be deemed to constitute a waiver) (such Mortgage Loan Reserve Funds, the “Waived Reserve Funds”), Borrower shall promptly (i) notify Lender of the same and establish and maintain with Lender and for the benefit of Lender reserves in replacement and substitution thereof (the “Substitute Reserves”), which Substitute Reserves shall be Reserve Funds and subject to all of the same terms and conditions applicable to the Mortgage Loan Reserve Funds under the Mortgage Loan Documents and (ii) execute any amendments to this Agreement and/or the Loan Documents relating to the Substitute Reserves reasonably required by Lender (provided such amendments are substantially similar to, and impose no greater obligations than, the provisions set forth in the Mortgage Loan Agreement relating to the same).
Section 7.3. Letters of Credit.
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ARTICLE VIII.
(i) if (A) any Monthly Debt Service Payment Amount is not paid on or before the date it is due, (B) the Debt is not paid in full on the Maturity Date, or (C) any other portion of the Debt not specified in the foregoing clause (A) or (B) or any other amount payable to Lender pursuant to the Loan Documents is not paid on or prior to the date when the same is due; provided, that with respect to clause (C) only, such failure is continuing for five (5) Business Days after Lender delivers notice thereof to Borrower, subject to Section 2.6.3 hereof;
(ii) if any of the Taxes or Other Charges are not paid prior to the date on which any penalties or interest would be due; provided, however, that Mortgage Lender’s failure to timely pay the Taxes or Other Charges from the applicable Mortgage Loan Cash Management Account shall not constitute an Event of Default if sufficient funds collected pursuant to Section 7.2 of the Mortgage Loan Agreement are available in such account to pay such Taxes or Other Charges when due and Mortgage Lender fails to apply same when required to do so in accordance with the Mortgage Loan Agreement;
(iii) if the Policies are not kept in full force and effect, or if certified copies of the Policies are not delivered to Lender upon request (other than the Policies with respect to a Condominium held by and in favor of a Condominium or its Board, and not Mortgage Borrower or Operating Lessee, so long as Borrower or Equity Owner (as applicable) have caused Mortgage Borrower or Operating Lessee (as applicable) to diligently use commercially reasonable efforts to obtain such Policies); provided, however, that Mortgage Lender’s failure to timely pay the Insurance Premiums from the applicable Mortgage Loan Cash Management Account shall not constitute an Event of Default if sufficient funds collected pursuant to Section 7.2 of the Mortgage Loan Agreement are available in such account to pay such Insurance Premiums when due and Mortgage Lender fails to apply same when required to do so in accordance with the Mortgage Loan Agreement;
(iv) if Borrower or Equity Owner Transfers or otherwise encumbers any portion of any Collateral without Lender’s prior written consent (to the extent required herein) in violation of the provisions of this Agreement or the Pledge Agreement;
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(v) if any representation or warranty made by Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor or Guarantor herein or in any other Loan Document, or made by Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor or Guarantor in any report, certificate, financial statement or other instrument, agreement or document furnished to Lender by Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor or Guarantor shall have been false or misleading in any material respect as of the date the representation or warranty was made, provided that, to the extent that Lender reasonably determines that any such false or misleading representation or warranty was inadvertent, is non-recurring, and is capable of being cured, then the foregoing shall only constitute an Event of Default if such Person does not cure such false or misleading representation or warranty within thirty (30) days following the date on which Borrower receives notice of such false or misleading representation or warranty from Lender;
(vi) if Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor or Guarantor shall (i) make an assignment for the benefit of creditors or (ii) generally not pay its debts as they become due;
(vii) if a receiver, liquidator or trustee shall be appointed for Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor or Guarantor shall be adjudicated as bankrupt or insolvent, or if any petition for bankruptcy, reorganization or arrangement pursuant to federal bankruptcy law, or any similar federal or state law, shall be filed by or against, consented to, or acquiesced in by, Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor or Guarantor, or if any proceeding for the dissolution or liquidation of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor or Guarantor shall be instituted; provided, however, if such appointment, adjudication, petition or proceeding was involuntary and not consented to by Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor or Guarantor, as applicable, upon the same not being discharged, stayed or dismissed within ninety (90) days;
(viii) if Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor or Guarantor attempts to assign its rights under this Agreement or any of the other Loan Documents or any interest herein or therein in contravention of the Loan Documents;
(ix) intentionally omitted;
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(x) if Borrower or Equity Owner breaches any of its respective negative covenants contained in Section 5.2 hereof in any material respect unless Borrower or Equity Owner (as applicable) promptly corrects such breach within ten (10) Business Days (or such longer period as is expressly provided for in this Agreement) after the earlier of (i) receipt of notice from Lender thereof and (ii) Borrower or Equity Owner (as applicable) gaining knowledge of such breach, or breaches any representation, warranty or covenant contained in Section 4.1.30 hereof, unless (A) such breach is immaterial, inadvertent and non-recurring and (B) such violation or failure to comply does not materially increase the likelihood of substantive consolidation between Borrower or Equity Owner (as applicable) and any other entity and such violation or failure is both susceptible of cure and is promptly corrected by Borrower or Equity Owner (as applicable) within thirty (30) days after such breach occurs;
(xi) with respect to any term, covenant or provision set forth herein which specifically contains a notice requirement or grace period, if Borrower or Equity Owner shall be in default under such term, covenant or condition after the giving of such notice or the expiration of such grace period;
(xii) intentionally omitted;
(xiii) if a material default has occurred and continues beyond any applicable cure period under the Management Agreement (or any Replacement Management Agreement) and if such default permits the Manager thereunder to terminate or cancel the Management Agreement (or any Replacement Management Agreement) to the extent Borrower, Equity Owner, Operating Lessee Pledgor, Mortgage Borrower or Operating Lessee (as applicable) receives notice of such default and fails to promptly cure such default within ten (10) Business Days thereafter, and Mortgage Borrower or Operating Lessee (as applicable) fails to enter into a Replacement Management Agreement in accordance with the applicable terms and conditions of this Agreement prior to the effective termination date of the Management Agreement by Manager;
(xiv) if Borrower or Equity Owner fails to comply with the covenants as to Prescribed Laws set forth in Section 5.1.1 hereof;
(xv) Borrower shall fail to obtain and/or maintain the Interest Rate Cap Agreement or Replacement Interest Rate Cap Agreement, as applicable, as required pursuant to Section 2.2.8 hereof;
(xvi) if Borrower or Equity Owner shall continue to be in Default under any of the other terms, covenants or conditions of this Agreement or any other Loan Document not specified in this Section 8.1(a), for ten (10) days after notice to Borrower or Equity Owner (as applicable) from Lender, in the case of any Default which can be cured by the payment of a sum of money, or for thirty (30) days after notice from Lender in the case of any other Default; provided, however, that if such non-monetary Default is susceptible of cure but cannot reasonably be cured within such thirty (30) day period and provided further that Borrower or Equity Owner shall have commenced to cure such Default within such thirty (30) day period and thereafter diligently and expeditiously proceeds to cure the same, such thirty (30) day period shall be extended for such time as is reasonably necessary for Borrower or Equity Owner in the exercise of due diligence to cure such Default, such additional period not to exceed ninety (90) days;
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(xvii) if there shall be default under any of the other Loan Documents beyond any applicable cure periods contained in such documents, whether as to Borrower, Equity Owner, the Collateral or any Individual Property, or if any other such event shall occur or condition shall exist, if the effect of such event or condition is to accelerate the maturity of any portion of the Debt or to permit Lender to accelerate the maturity of all or any portion of the Debt;
(xviii) if Borrower or Equity Owner shall continue to be in Default under any of the terms, covenants or conditions of Section 9.1 hereof, or fails to cooperate with Lender in connection with a Securitization pursuant to the provisions of Section 9.1 hereof, each for five (5) Business Days after notice to Borrower or Equity Owner (as applicable) from Lender;
(xix) if an ERISA Event shall have occurred that, when taken together with all other such ERISA Events, is reasonably likely to result in a Material Adverse Effect;
(xx) if, without Lender’s consent, any liquor license, hotel license, and/or other material Permit reasonably required for the operation of the Viceroy Property as it is operated as of the Closing Date, and the lack of which would result in a Material Adverse Effect for the Viceroy Property, ceases to be in full force and effect and, in each instance, such failure shall continue for thirty (30) days following notice to Borrower, Mortgage Borrower or Operating Lessee;
(xxi) intentionally omitted;
(xxii) if Mortgage Borrower, Operating Lessee or the Viceroy Manager fails to make any required contributions related to employees covered by the CBA Multiemployer Plans after Mortgage Borrower, Operating Lessee and/or the Viceroy Manager is notified in writing of a failure to make any required contributions related to employees covered by the CBA Multiemployer Plans and Mortgage Borrower, Operating Lessee and/or the Viceroy Manager fails to cure any deficiency or contest the same within sixty (60) days of such notice and Lender reasonably determines that such failure to make such required contribution would result in a Material Adverse Effect;
(xxiii) if (A) a default has occurred and continues beyond any applicable cure period under the Operating Lease, (B) the Operating Lease is amended, modified or terminated in violation of the terms of this Agreement or (C) Mortgage Borrower fails to enforce any of the terms and provisions of the Operating Lease;
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(xxiv) if (A) any Mortgage Borrower shall fail to pay before the expiration of any applicable notice and grace periods, any Common Charge or any other charges, fees, assessments or other amounts imposed upon any Mortgage Borrower under the Condominium Documents, or (B) any Mortgage Borrower shall amend or consent to the amendment of any of the Condominium Documents to the extent Mortgage Borrower has the right to vote thereon without Lender’s consent in contravention of this Agreement or the Mortgage Loan Agreement, or (C) any Mortgage Borrower shall otherwise be in material default under any material term, covenant or condition of the Condominium Documents which material default remains uncured beyond the expiration of the applicable grace or cure period, if any, and which would otherwise have a Material Adverse Effect on the Property;
(xxv) if (A) a breach or default by Mortgage Borrower under any obligation contained in the Ground Lease is not cured within any applicable cure period provided therein, (B) there occurs any event or condition that gives the Ground Lessor a right to terminate or cancel the Ground Lease, or (C) the Viceroy Property shall be surrendered or the Ground Lease shall be terminated or cancelled for any reason or under any circumstances whatsoever, or (D) any of the terms, covenants or conditions of the Ground Lease shall in any manner be modified, changed, supplemented, altered, or amended without the prior written consent of Lender;
(xxvi) if (A) a breach or default by Mortgage Borrower under any obligation contained in the Master Lease is not cured within any applicable cure period provided therein, (B) there occurs any event or condition that gives the Master Lessor a right to terminate or cancel the Master Lease, or (C) the 000 Xxxxxxxx Xxxxxx Property shall be surrendered or the Master Lease shall be terminated or cancelled for any reason or under any circumstances whatsoever, or (D) any of the terms, covenants or conditions of the Master Lease shall in any manner be modified, changed, supplemented, altered, or amended without the prior written consent of Lender;
(xxvii) if Mortgage Borrower fails to comply with the covenants as to the withdrawal and use of the WWP Fund as set forth in Section 5.2.13 hereof and Section 5.2.13 and Section 7.9.2 of the Mortgage Loan Agreement; or
(xxviii) if a Mortgage Loan Event of Default shall have occurred and is continuing (provided, however, that the cure by Mortgage Borrower of one Mortgage Loan Event of Default shall not constitute or be deemed a cure by Mortgage Borrower or waiver by Lender of any other Mortgage Loan Event of Default).
(b) Upon the occurrence of an Event of Default (other than an Event of Default described in clauses (vi), (vii) or (viii) above) and at any time thereafter, in addition to any other rights or remedies available to it pursuant to this Agreement and the other Loan Documents or at law or in equity, Lender may take such action, without notice or demand, that Lender deems advisable to protect and enforce its rights against Borrower and Equity Owner and in and to any or all of the Collateral, including, without limitation, declaring the Debt to be immediately due and payable, and Lender may enforce or avail itself of any or all rights or remedies provided in the Loan Documents against Borrower, Equity Owner and any or all of the Collateral, including, without limitation, all rights or remedies available at law or in equity; and upon any Event of Default described in clauses (vi), (vii) or (viii) above, the Debt and all other obligations of Borrower and Equity Owner hereunder and under the other Loan Documents shall immediately and automatically become due and payable, without notice or demand, and each of Borrower and Equity Owner hereby expressly waives any such notice or demand, anything contained herein or in any other Loan Document to the contrary notwithstanding.
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(b) With respect to Borrower, Equity Owner and the Collateral, nothing contained herein or in any other Loan Document shall be construed as requiring Lender to resort to the Collateral or any portion thereof for the satisfaction of any of the Debt in any preference or priority, and Lender may seek satisfaction out of the Collateral, or any part thereof, in its absolute discretion in respect of the Debt. In addition, Lender shall have the right from time to time to partially foreclose the Pledge Agreement or any Collateral in any manner and for any amounts secured by the Pledge Agreement and/or the other Loan Documents then due and payable as determined by Lender in its sole discretion including, without limitation, the following circumstances: (i) in the event Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal and interest, Lender may foreclose the Pledge Agreement or any Collateral to recover such delinquent payments or (ii) in the event Lender elects to accelerate less than the entire outstanding principal balance of the Loan, following an Event of Default, Lender may foreclose the Pledge Agreement or any Collateral to recover so much of the principal balance of the Loan as Lender may accelerate and such other sums secured by the Pledge Agreement and/or the other Loan Documents as Lender may elect. Notwithstanding one or more partial foreclosures, the remaining Collateral shall remain subject to the Pledge Agreement to secure payment of sums secured by the Pledge Agreement and not previously recovered.
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(c) Following an Event of Default, Lender shall have the right from time to time to sever the Note and the other Loan Documents into one or more separate notes, pledge agreements and other security documents (the “Severed Loan Documents”) in such denominations as Lender shall determine in its sole discretion for purposes of evidencing and enforcing its rights and remedies provided hereunder. Borrower and Equity Owner shall execute and deliver to Lender from time to time, promptly after the request of Lender, a severance agreement and such other documents as Lender shall request in order to effect the severance described in the preceding sentence, all in form and substance reasonably satisfactory to Lender. Each of Borrower and Equity Owner hereby absolutely and irrevocably appoints Lender as its true and lawful attorney, coupled with an interest, in its name and stead to make and execute all documents necessary or desirable to effect the aforesaid severance, Borrower and Equity Owner ratifying all that its said attorney shall do by virtue thereof; provided, however, Lender shall not make or execute any such documents under such power until an Event of Default has occurred and Lender has accelerated the Loan. Borrower and Equity Owner shall be obligated to pay any costs or expenses incurred in connection with the preparation, execution, recording or filing of the Severed Loan Documents and the Severed Loan Documents shall not contain any representations, warranties or covenants not contained in the Loan Documents and any such representations and warranties contained in the Severed Loan Documents will be given by Borrower and Equity Owner only as of the Closing Date.
(d) Subject to applicable law, Lender shall have the right from time to time to partially foreclose the Pledge Agreement or any Collateral in any manner and for any amounts secured by the Pledge Agreement and/or the other Loan Documents then due and payable as determined by Lender in its sole discretion, including the following circumstances: (i) in the event Borrower defaults beyond any applicable grace period in the payment of one or more scheduled payments of principal and/or interest, Lender may foreclose the Pledge Agreement or any Collateral to recover such delinquent payments, or (ii) in the event Lender elects to accelerate less than the entire outstanding principal balance of the Loan, following an Event of Default, Lender may foreclose the Pledge Agreement or any Collateral to recover so much of the Debt as Lender may accelerate and such other sums secured by the Pledge Agreement and/or the other Loan Documents as Lender may elect. Notwithstanding one or more partial foreclosures, the Property shall remain subject to the Security Instruments and the Pledge Agreement to secure payment of sums secured by the Security Instruments and the Pledge Agreement, respectively, and not previously recovered.
(e) Any amounts recovered from the Collateral or any other collateral for the Loan after an Event of Default may be applied by Lender toward the payment of any interest and/or principal of the Loan and/or any other amounts due under the Loan Documents in such order, priority and proportions as Lender in its sole discretion shall determine.
(f) If an Event of Default exists, Lender may (directly or by its agents, employees, contractors, engineers, architects, nominees, attorneys or other representatives), but without any obligation to do so and without notice to Borrower or Equity Owner and without releasing Borrower or Equity Owner from any obligation hereunder, cure the Event of Default in such manner and to such extent as Lender may deem necessary to protect the security hereof. Lender (and its agents, employees, contractors, engineers, architects, nominees, attorneys or other representatives) are authorized to enter upon the Property to cure such Event of Default, and Lender is authorized to appear in, defend, or bring any action or proceeding reasonably necessary to maintain, secure or otherwise protect the Properties and the Collateral or the priority of the Lien granted by the Pledge Agreement.
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(g) If an Event of Default has occurred and is continuing and Lender has commenced the exercise of its remedies in connection therewith, and subject to the rights of Mortgage Lender under the Mortgage Loan, Lender may appear in and defend any action or proceeding brought with respect to the Property and the Collateral and may bring any action or proceeding, in the name and on behalf of Borrower, Equity Owner, Operating Lessee Pledgor Mortgage Borrower and/or Operating Lessee, which Lender, in its sole discretion, decides should be brought to protect its interest in the Collateral. Lender shall, at its option, be subrogated to the Lien of any pledge agreement or other security instrument discharged in whole or in part by the Debt, and any such subrogation rights shall constitute additional security for the payment of the Debt.
(h) As used in this Section 8.2, a “foreclosure” shall include, without limitation, any sale by power of sale.
ARTICLE IX.
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(b) In connection with a Securitization or Participation, at the request of Lender, and to the extent not already required to be provided by or on behalf of Borrower or Equity Owner under this Agreement, Borrower and Equity Owner shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender or take other actions reasonably required by Lender, in each case in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization or Participation (but in no event shall such cooperation result in any increase in any obligations of Borrower or rights of Lender or decrease in any rights of Borrower or obligations of Lender under the Loan Documents or change in any of the economic or monetary provisions of the Loan or the Loan Documents and not result in any “rate creep” under the Loan Agreement prior to any Event of Default). Lender shall have the right to provide to prospective investors and the Rating Agencies any information in its possession, including, without limitation, financial statements relating to Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee, Guarantor, if any, the Properties, the Collateral and any Tenant of the Improvements. Each of Borrower and Equity Owner acknowledges that certain information regarding the Loan and the parties thereto, the Properties and the Collateral may be included in a private placement memorandum, prospectus or other disclosure documents. Each of Borrower and Equity Owner agrees that each of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee, Guarantor and their respective officers and representatives, shall, at Lender’s request, at Lender’s sole cost and expense subject to Section 9.1.2 hereof, cooperate with Lender’s efforts to arrange for a Securitization or Participation in accordance with the market standards to which Lender customarily adheres and/or which may be required by prospective investors and/or the Rating Agencies in connection with any such Securitization or Participation (as applicable). Borrower, Equity Owner and Guarantor agree to review, at Lender’s request in connection with the Securitization, the Disclosure Documents as such Disclosure Documents relate to Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor, Operating Lessee, Guarantor, Manager, the Properties, the Collateral, the Mortgage Loan and the Loan, including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Security Instruments,” “Description of the Mortgage Loan and Mortgaged Property,” “Description of the Collateral,” “Description of the Mezzanine Loan,” “The Ground Lease,” “The Master Lease,” “The Operating Lease,” “The Condominiums,” “The Manager,” “The Borrower,” “The Ground Lessee”,” “The Master Lessee,” “The Operating Lessee,” “Description of the Mortgage Borrower” and “Certain Legal Aspects of the Mortgage Loan” (or sections similarly titled or covering similar subject matters) and shall confirm that the factual statements and representations contained in such sections and such other information in the Disclosure Documents (to the extent such information relates to, or is based on, or includes any information regarding the Properties, the Collateral, Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, Guarantor, Manager, the Mortgage Loan and/or the Loan) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.
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(c) In connection with a Securitization or Participation, Borrower agrees to make upon Lender’s written request, without limitation, all structural or other changes to the Loan (including delivery of one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan and such new notes or modified note may have different interest rates and amortization schedules), modifications to any documents evidencing or securing the Loan, creation of one or more additional mezzanine loans (including amending Borrower’s organizational structure to provide for one or more additional mezzanine borrowers), delivery of opinions of counsel acceptable to the Approved Rating Agencies or potential investors and addressing such matters as the Approved Rating Agencies or potential investors may require; provided, however, that in creating such new notes or modified notes or mezzanine notes Borrower shall not be required to modify (i) the initial weighted average interest rate payable under the Note or take any other action which would result in “rate creep” prior to any Event of Default, (ii) the stated maturity of the Note, (iii) the provisions related to pro rata payment between the Loan, Mortgage Loan and any other mezzanine loans and among the notes for each such loan prior to an Event of Default, (iv) the aggregate principal of the Note, (v) any other material economic term of the Loan, (vi) decrease the time periods during which Borrower is permitted to perform its obligations under the Loan Documents, or (vii) increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents or increase the rights or reduce the obligations of Lender, nor shall Borrower (subject to Section 9.1.3 hereof) be required to modify its organizational structure or make any other modification, if such modification would cause it or any of its Affiliates or direct or indirect owners to incur any additional tax liability not already contemplated by the terms and conditions of this Agreement prior to any such modification.
(d) If requested by Lender, Borrower and Equity Owner shall provide Lender, promptly upon request, with any financial statements, financial, statistical or operating information or other information as Lender shall reasonably determine necessary or appropriate (including items required (or items that are required if the Securitization is offered publicly) pursuant to Regulation AB under the Securities Act, or the Exchange Act, or any amendment, modification or replacement thereto) or required by any other legal requirements, in each case, in connection with any private placement memorandum, prospectus or other disclosure documents or materials or any filing pursuant to the Exchange Act in connection with the Securitization or as shall otherwise be reasonably requested by Lender, provided that Borrower and Equity Owner shall provide such information solely to the extent such information is reasonably obtainable using systems then in place by Borrower, Equity Owner, Mortgage Borrower, Operating Lessee Pledgor or Operating Lessee, or otherwise Borrower and Operating Lessee shall provide such information at Lender’s cost and expense.
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(b) Notwithstanding the provisions of Section 9.1 to the contrary, each Borrower covenants and agrees that after the Closing Date and prior to a Securitization, Lender shall have the right to create one or more additional mezzanine loans (each, a “New Mezzanine Loan”), to establish different interest rates and to reallocate principal balances of each of the Loan, the Mortgage Loan and any New Mezzanine Loan(s) amongst each other and to reallocate the interest rate among the Loan, the Mortgage Loan and any new Mezzanine Loan(s) and to require the payment of the Loan, the Mortgage Loan and any New Mezzanine Loan(s) to be made pro rata prior to an Event of Default; provided, that (i) in no event shall the weighted average interest rate of the Loan, the Mortgage Loan and any New Mezzanine Loan(s) following any such reallocation or modification change from the weighted average interest rate for all in effect immediately preceding such reallocation, modification or creation of any New Mezzanine Loan(s), and (ii) such New Mezzanine Loan(s) will not increase Borrower’s obligations and liabilities under the Loan Documents or decrease the rights of Borrower under the Loan Documents or increase Lender’s rights under the Loan Documents or Mortgage Lender’s rights under the Mortgage Loan Documents or decrease Lender’s obligations under the Loan Documents or Mortgage Lender’s obligations under the Mortgage Loan Documents. Borrower shall execute and deliver such documents as shall reasonably be required by Lender as promptly as possible under the circumstances in connection with this Section 9.1.3, all in form and substance reasonably satisfactory to Borrower, Lender and the Rating Agencies, including, without limitation, in connection with the creation of any New Mezzanine Loan, a promissory note and loan documents necessary to evidence such New Mezzanine Loan, and Borrower and Equity Owner shall execute such amendments to the Loan Documents and the Mortgage Loan Documents as are necessary in connection with the creation of such New Mezzanine Loan all of which shall be on substantially the same terms and conditions as the Loan Documents. In addition, Borrower shall cause the formation of one or more special purpose, bankruptcy remote entities as required by Lender in order to serve as the borrower under any New Mezzanine Loan (each, a “New Mezzanine Borrower”) and the applicable organizational documents of Borrower and Mortgage Borrower shall be amended and modified as necessary or required in the formation of any New Mezzanine Borrower. Further, in connection with any New Mezzanine Loan, Borrower shall deliver to Lender opinions of legal counsel, in substantially the same form as were delivered in connection with the Loan, with respect to due execution, authority and enforceability of the New Mezzanine Loan and the Loan Documents and Mortgage Loan Documents, as amended, each as reasonably acceptable to Lender, prospective investors and/or the Rating Agencies.
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(a) Each of Borrower and Equity Owner acknowledges and agrees that Lender may at any time issue one or participation interests in the Loan (each, a “Participation”).
(b) Each Lender that sells a participation pursuant to Section 9.1.4(a) shall, acting solely for this purpose as an agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts (and stated interest) of each participant’s interest in the Loan or other Obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any participant or any information relating to a participant’s interest in any Obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.
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(b) The Indemnifying Persons agree to provide, in connection with the Securitization, an indemnification agreement in form reasonably satisfactory to Lender and the Indemnifying Persons (i) certifying that (A) each Indemnifying Person has examined those portions of the Disclosure Documents specified by Lender and provided to such Indemnifying Person which may include, without limitation, the sections entitled “Risk Factors”, “Special Considerations”, “Description of the Security Instruments”, “Description of the Mortgage Loans and Mortgaged Property”, “Description of the Collateral,” “Description of the Mezzanine Loan,” “The Ground Lease,” “The Master Lease,” “The Operating Lease,” “The Condominiums,” “The Manager”, “The Borrower,” “The Ground Lessee”,” “The Master Lessee,” “The Operating Lessee”, “Description of the Mortgage Borrower” and “Certain Legal Aspects of the Mortgage Loan”, and (B) such sections (to the extent such information relates to or includes any Provided Information or any information regarding the Property, the Collateral, Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor, Manager which is an Affiliate of Borrower, Equity Owner, Mortgage Borrower, Operating Lessee, Operating Lessee Pledgor or Guarantor, the Mortgage Loan and/or the Loan) (collectively with the Provided Information, the “Covered Disclosure Information”), and such Covered Disclosure Information does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) jointly and severally indemnifying Lender, Credit Suisse (whether or not it is the Lender), any Affiliate of Credit Suisse that has filed any registration statement relating to the Securitization or has acted as the sponsor or depositor in connection with the Securitization, any Affiliate of Credit Suisse that acts as an underwriter, placement agent or initial purchaser of Securities issued in the Securitization, any other co-underwriters, co-placement agents or co-initial purchasers of Securities issued in the Securitization, and each of their respective officers, directors, partners, employees, representatives, agents and Affiliates and each Person or entity who Controls any such Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Indemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including, without limitation, reasonable legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”)) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Person, as they are incurred, in connection with investigating or defending the Liabilities; provided, however, that (x) the Indemnifying Person will be liable in any such case under Section 9.1.4(b) only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of the Indemnifying Person in connection with the preparation of the Disclosure Document, (y) the Indemnifying Person shall not be obligated to provide the certification set forth herein or be liable hereunder if such Indemnifying Person has not been afforded reasonable time under the circumstances to review and comment on the applicable sections of the applicable Disclosure Document, and (z) no Indemnifying Person shall be liable in connection with the above with respect to any statement or omission or any failure of Lender to accurately transcribe any portion of the Covered Disclosure Information provided by such Indemnifying Person. This indemnity agreement will be in addition to any liability which Borrower may otherwise have. Moreover, the indemnification and reimbursement obligations provided for in clauses (ii) and (iii) above shall be effective, valid and binding obligations of the Indemnifying Persons, whether or not an indemnification agreement described in clause (i) above is provided.
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(c) In connection with any filing pursuant to the Exchange Act in connection with or relating to the Securitization, the Indemnifying Persons jointly and severally agree to indemnify (i) the Indemnified Persons for Liabilities to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact in the Covered Disclosure Information, or the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be stated therein or necessary in order to make the statements in the Covered Disclosure Information, in light of the circumstances under which they were made, not misleading and (ii) reimburse each Indemnified Person for any legal or other expenses incurred by such Indemnified Persons, as they are incurred, in connection with defending or investigating the Liabilities; provided, however, that (x) the Indemnifying Person will be liable in any such case under Section 9.2(c) only to the extent that any such loss claim, damage or liability arises out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender by or on behalf of the Indemnifying Person in connection with the preparation of the Disclosure Document, (y) the Indemnifying Person shall not be obligated to provide the certification set forth herein or be liable hereunder if such Indemnifying Person has not been afforded reasonable time under the circumstances to review and comment on the applicable sections of the applicable Disclosure Document, and (z) no Indemnifying Person shall be liable in connection with the above with respect to any statement or omission or any failure of Lender to accurately transcribe any portion of the Covered Disclosure Information provided by such Indemnifying Person.
(d) Borrower shall indemnify Lender and each of its respective officers, directors, partners, employees, representatives involved in the origination of the Loan or the Securitization, agents and Affiliates against any liabilities to which Lender, each of its respective officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any indemnification to the Rating Agencies in connection with issuing, monitoring or maintaining the Securities insofar as the liabilities arise out of or are based upon any untrue statement of any material fact in any information provided by or on behalf of the Borrowers and Equity Owner to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be stated therein or necessary in order to make the statements in the Covered Rating Agency Information, in light of the circumstances under which they were made, not misleading.
(e) Promptly after receipt by an Indemnified Person of notice of any claim or the commencement of any action, the Indemnified Person shall, if a claim in respect thereof is to be made against any Indemnifying Person, notify such Indemnifying Person in writing of the claim or the commencement of that action; provided, however, that the failure to notify such Indemnifying Person shall not relieve it from any liability which it may have under the indemnification provisions of this Section 9.2 except to the extent that it has been materially prejudiced by such failure and, provided further that the failure to notify such Indemnifying Person shall not relieve it from any liability which it may have to an Indemnified Person otherwise than under the provisions of this Section 9.2. If any such claim or action shall be brought against an Indemnified Person, and it shall notify any Indemnifying Person thereof, such Indemnifying Person shall be entitled to participate therein and, to the extent that it wishes, assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from any Indemnifying Person to the Indemnified Person of its election to assume the defense of such claim or action, such Indemnifying Person shall not be liable to the Indemnified Person for any legal or other expenses subsequently incurred by the Indemnified Person in connection with the defense thereof except as provided in the following sentence; provided, however, if the defendants in any such action include both an Indemnifying Person, on the one hand, and one or more Indemnified Persons on the other hand, and an Indemnified Person shall have reasonably concluded that there are any legal defenses available to it and/or other Indemnified Persons that are different or in addition to those available to the Indemnifying Person, the Indemnified Person or Persons shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such Indemnified Person or Persons. The Indemnified Person shall instruct its counsel to maintain reasonably detailed billing records for fees and disbursements for which such Indemnified Person is seeking reimbursement hereunder and shall submit copies of such detailed billing records to substantiate that such counsel’s fees and disbursements are solely related to the defense of a claim for which the Indemnifying Person is required hereunder to indemnify such Indemnified Person. No Indemnifying Person shall be liable for the expenses of more than one (1) such separate counsel unless such Indemnified Person shall have reasonably concluded that there is an actual conflict of interest between the Indemnified Parties seeking separate representation.
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(f) Without the prior written consent of Credit Suisse (which consent shall not be unreasonably withheld), no Indemnifying Person shall settle or compromise or consent to the entry of any judgment in any pending or threatened claim, action, suit or proceeding in respect of which indemnification may be sought hereunder (whether or not any Indemnified Person is an actual or potential party to such claim, action, suit or proceeding) unless the Indemnifying Person shall have given Credit Suisse reasonable prior notice thereof and shall have obtained an unconditional release of each Indemnified Person hereunder from all liability arising out of such claim, action, suit or proceedings. As long as an Indemnifying Person has complied with its obligations to defend and indemnify hereunder, such Indemnifying Person shall not be liable for any settlement made by any Indemnified Person without the consent of such Indemnifying Person (which consent shall not be unreasonably withheld).
(g) (f) The Indemnifying Persons agree that if any indemnification or reimbursement sought pursuant to this Section 9.2 is finally judicially determined to be unavailable for any reason or is insufficient to hold any Indemnified Person harmless (with respect only to the Liabilities that are the subject of this Section 9.2), then the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, shall contribute to the Liabilities for which such indemnification or reimbursement is held unavailable or is insufficient: (x) in such proportion as is appropriate to reflect the relative benefits to the Indemnifying Persons, on the one hand, and such Indemnified Person, on the other hand, from the transactions to which such indemnification or reimbursement relates; or (y) if the allocation provided by clause (x) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (x) but also the relative faults of the Indemnifying Persons, on the one hand, and all Indemnified Persons, on the other hand, as well as any other equitable considerations. Notwithstanding the provisions of this Section 9.2, (A) no party found liable for a fraudulent misrepresentation shall be entitled to contribution from any other party who is not also found liable for such fraudulent misrepresentation, and (B) the Indemnifying Persons agree that in no event shall the amount to be contributed by the Indemnified Persons collectively pursuant to this paragraph exceed the amount of the fees (by underwriting discount or otherwise) actually received by the Indemnified Persons in connection with the closing of the Loan or the Securitization.
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(h) The Indemnifying Persons agree that the indemnification, contribution and reimbursement obligations set forth in this Section 9.2 shall apply whether or not any Indemnified Person is a formal party to any lawsuits, claims or other proceedings. The Indemnifying Persons further agree that the Indemnified Persons are intended third party beneficiaries under this Section 9.2.
(i) The liabilities and obligations of the Indemnified Persons and the Indemnifying Persons under this Section 9.2 shall survive the termination of this Agreement and the satisfaction and discharge of the Debt.
(j) Notwithstanding anything to the contrary contained herein, Borrower shall have no obligation to act as depositor with respect to the Loan or an issuer or registrant with respect to the Securities issued in any Securitization.
(a) Column Financial, Inc. (“Column”) shall act as Agent for itself and the Co-Lenders pursuant to this Section 9.3. Column, by execution hereof, hereby accepts such appointment as Agent. Borrower acknowledges that Agent shall have the sole and exclusive authority to execute and perform this Agreement and each Loan Document on behalf of itself, as a Lender and as agent for itself and the Co-Lenders. Each Lender acknowledges that Agent shall retain the exclusive right to grant approvals and give consents and approvals with respect to all matters requiring Lender’s consent or approval hereunder. Notwithstanding anything to the contrary in this Agreement, all references herein or in any other Loan Document to Lender shall mean “Lender” or “Agent on behalf of Lender,” as the context may require. Each Co-Lender agrees that, with respect to Required Lender Decisions (as defined in the Co-Lender Agreement), if there are two (2) or more Co-Lenders that are not Defaulting Lenders (as defined in the Co-Lender Agreement), then the approval of Co-Lenders that are not Defaulting Lenders and which cumulatively own not less than sixty percent (60%) of the then aggregate unpaid principal amount of the Loan (after subtracting the interest or interests owned by any Defaulting Lenders, given that no Defaulting Lender has voting rights under the Co-Lender Agreement) shall be required (the “Required Lender Threshold”). So long as no Event of Default has occurred and is continuing, such Required Lender Threshold may not be amended or modified without the prior written consent of Borrower (not to be unreasonably withheld, conditioned or delayed). Except as otherwise expressly provided herein, Borrower shall have no obligation to recognize or deal directly with any Co-Lender, and no Co-Lender shall have any right to deal directly with Borrower with respect to the rights, benefits and obligations of Borrower under this Agreement, the Loan Documents or any one or more documents or instruments in respect thereof. Borrower may rely conclusively on the actions of Agent to bind Lender and the Co-Lenders, notwithstanding that the particular action in question may, pursuant to this Agreement be subject to the consent or direction of some or all of the Co-Lenders. Any Agent may resign as Agent of the Co-Lenders subject to the reasonable approval of Borrower (not to be unreasonably withheld, conditioned or delayed); provided, however, that Agent may resign as Agent under this Agreement and the other Loan Documents without Borrower’s approval or consent if (1) required by a subpoena, or judicial or administrative process, or (2) if required by any applicable regulatory authority (including, without limitation, self-regulatory authorities (including, without limitation, FINRA)), or (3) neither Agent nor any Affiliate successor or assign doing business in the United States will be engaged going forward, or is no longer engaged in the United States of America in the business of holding interests in commercial real estate loans. Prior to the effectiveness of any such resignation, a successor Agent shall be determined by the Lenders subject to the reasonable approval of Borrower (not to be unreasonably withheld, delayed or conditioned) and such successor Agent shall be appointed effective immediately upon the effective date of such resignation. The term “Agent” shall mean Column and any successor Agent.
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(b) Notwithstanding any provision to the contrary in this Agreement, the Agent shall not have any duties or responsibilities to Borrower except those expressly set forth herein and no covenants, functions, responsibilities, duties, obligations or liabilities of Agent shall be implied by or inferred from this Agreement or any other Loan Document, or otherwise exist against Agent.
(c) Except to the extent its obligations hereunder and its interest in the Loan have been assigned pursuant to one or more assignment and assumption agreements, Column, in its capacity as a Co-Lender (and not as Agent), shall have the same rights and powers under this Agreement as any other Co-Lender and may exercise the same in its capacity as Lender. Lender and the other Co-Lenders and their respective Affiliates may accept deposits from, lend money to, act as trustee under indentures of, and generally engage in any kind of business with, Borrower, or any Affiliate of Borrower and any Person who may do business with or own securities of Borrower or any Affiliate of Borrower, all as if they were not serving in such capacities hereunder and without any duty to account therefor to each other.
(d) If required by any Co-Lender, Borrower agrees to make reasonable changes to the Loan (including delivery of one or more new component notes to replace the original notes or modify the original notes to reflect multiple components of the Loan and such new notes or modified notes may have different interest rates and amortization schedules), modifications to any documents evidencing or securing the Loan, creation of one or more mezzanine loans (including amending Borrower’s organizational structure to provide for one or more mezzanine borrowers), delivery of opinions of counsel in substantially similar form and substance to the opinions of counsel delivered as of the Closing Date and reasonably acceptable to the Co-Lenders for which the reasonable, out-of-pocket costs actually incurred shall be paid or reimbursed by the requesting Lender; provided, however, that in creating such new notes or modified notes or mezzanine notes or undertaking any of the foregoing, the foregoing shall not (i) modify the weighted average interest rate payable under the Note or result in “rate creep” prior to any Event of Default, (ii) modify the stated maturity of the Note, (iii) modify the provisions related to pro rata payment between the Loan, the Mortgage Loan and any other mezzanine loans and among the notes for each such loan prior to an Event of Default, (iv) modify the aggregate principal of the Note, (v) modify any other material economic term of the Loan, (vi) decrease the time periods during which Borrower is permitted to perform its obligations under the Loan Documents, or (vii) increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents or increase the rights or reduce the obligations of Lender, nor shall Borrower (subject to Section 9.1.3 hereof) be required to modify its organizational structure or make any other modification, if such modification would cause it or any of its Affiliates or direct or indirect owners to incur any additional tax liability not already contemplated by the terms and conditions of this Agreement prior to any such modification.
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(e) Agent, shall maintain at its domestic lending office or at such other location as Agent and shall designate in writing to each Co-Lender and Borrower a copy of each assignment and assumption agreement delivered to and accepted by it and a register for the recordation of the names and addresses of the Co-Lenders, the amount of each Co-Lender’s proportionate share of the Loan and the name and address of each Co-Lender’s agent for service of process (the “Register”). No assignment shall be effective unless recorded in the Register. The entries in the Register shall be conclusive and binding for all purposes, absent manifest error, and Borrower, Agent, and the Co-Lenders shall treat each person or entity whose name is recorded in the Register as a Co-Lender hereunder for all purposes of this Agreement. The Register shall be available for inspection and copying by Borrower or any Co-Lender during normal business hours upon reasonable prior notice to the Agent. For the avoidance of doubt, this Section 9.3(e) shall be construed so that all Loans are at all times maintained in “registered form” within the meaning of Sections 163(f), 871(h)(2) and 881 (c)(2) of the Code, and any related Treasury regulations (or any other relevant or successor provisions of the Code or of such Treasury regulations). A Co-Lender may change its address and its agent for service of process upon written notice to Column, as Agent, and to Borrower, which notice shall only be effective upon actual receipt by Agent and by Borrower, which receipt will be acknowledged by Agent and by Borrower upon request.
(f) Notwithstanding anything to the contrary set forth herein, no Lender (together with any Affiliates) may own more than fifty percent (50%) of the then aggregate unpaid principal amount of the Loan without the prior written consent of Borrower (not to be unreasonably withheld, conditioned or delayed), other than Column and its Affiliates, Western Asset Management Company and its Affiliates, and any trust pursuant to a Securitization (so long as neither Control of the trust is held, nor more than fifty percent (50%) of the beneficial interests in such trust is owned, in either case, by any Person (together with any Affiliates) other than Column and its Affiliates and/or Western Asset Management Company and its Affiliates), for which such limitation shall not be applicable.
(g) Notwithstanding any other provision set forth in this Agreement, Lender or any Co-Lender may at any time create a security interest in all or any portion of its rights under this Agreement (including, without limitation, amounts owing to it in favor of any Federal Reserve Bank in accordance with Regulation A of the Board of Governors of the Federal Reserve System).
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(b) Notwithstanding anything to the contrary in this Section 9.4 or any other provision of this Agreement or any other Loan Document, Equity Owner shall not be liable to Lender under this Section 9.4 or any other provision of this Agreement or any other Loan Document (including, without limitation, any liability for all or any portion of the Debt), provided that, upon the occurrence of an Event of Default hereunder, Agent shall have the right to foreclose upon Equity Owner’s interest in the Collateral subject to and in accordance with the terms hereof and of the Pledge Agreement and any other collateral securing the Loan in which Equity Owner now or hereafter has any right, title or interest.
(c) Notwithstanding anything to the contrary in this Agreement, the Note or any of the Loan Documents, Agent may exercise its rights under Section 506(a), 506(b), 1111(b) or any other provisions of the Bankruptcy Code to file a claim for the full amount of the Debt secured by the Pledge Agreement or to require that all Properties and the Collateral shall continue to secure all of the Debt owing to Lender in accordance with the Loan Documents.
(d) In no event shall Borrower or Guarantor have any liability under this Agreement or any other Loan Document for special, incidental, indirect or consequential damages.
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ARTICLE X.
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(b) ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST LENDER, EQUITY OWNER OR BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS MAY AT LENDER’S OPTION BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN XXX XXXX XX XXX XXXX, XXXXXX XX XXX XXXX, PURSUANT TO SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND EACH OF BORROWER AND EQUITY OWNER WAIVES ANY OBJECTIONS WHICH IT MAY NOW OR HEREAFTER HAVE BASED ON VENUE AND/OR FORUM NON CONVENIENS OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND EACH OF BORROWER AND EQUITY OWNER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUIT, ACTION OR PROCEEDING. EACH OF BORROWER AND EQUITY OWNER DOES HEREBY DESIGNATE AND APPOINT:
CORPORATION SERVICES COMPANY
00 XXXXX XXXXXX
XXXXXX, XXX XXXX 00000
AS ITS AUTHORIZED AGENT TO ACCEPT AND ACKNOWLEDGE ON ITS BEHALF SERVICE OF ANY AND ALL PROCESS WHICH MAY BE SERVED IN ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY FEDERAL OR STATE COURT IN NEW YORK, NEW YORK, AND AGREES THAT SERVICE OF PROCESS UPON SAID AGENT AT SAID ADDRESS AND WRITTEN NOTICE OF SAID SERVICE MAILED OR DELIVERED TO BORROWER OR EQUITY OWNER IN THE MANNER PROVIDED HEREIN SHALL BE DEEMED IN EVERY RESPECT EFFECTIVE SERVICE OF PROCESS UPON BORROWER OR EQUITY OWNER (AS APPLICABLE) IN ANY SUCH SUIT, ACTION OR PROCEEDING IN THE STATE OF NEW YORK. BORROWER AND EQUITY OWNER (I) SHALL GIVE PROMPT NOTICE TO LENDER OF ANY CHANGED ADDRESS OF ITS AUTHORIZED AGENT HEREUNDER, (II) MAY AT ANY TIME AND FROM TIME TO TIME DESIGNATE A SUBSTITUTE AUTHORIZED AGENT WITH AN OFFICE IN NEW YORK, NEW YORK (WHICH SUBSTITUTE AGENT AND OFFICE SHALL BE DESIGNATED AS THE PERSON AND ADDRESS FOR SERVICE OF PROCESS), AND (III) SHALL PROMPTLY DESIGNATE SUCH A SUBSTITUTE IF ITS AUTHORIZED AGENT CEASES TO HAVE AN OFFICE IN NEW YORK, NEW YORK OR IS DISSOLVED WITHOUT LEAVING A SUCCESSOR.
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If to Agent or Initial Lender:
Column Financial, Inc.
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: N. Xxxxx XxXxxxx and Xxxxx Xxxxxx
with a copy to:
Dechert LLP
Xxxx Centre
0000 Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
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If to Borrower or Equity Owner:
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Ead
with a copy to:
Xxxxxx & Xxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxx, Esq.
A notice shall be deemed to have been given: in the case of hand delivery, at the time of delivery; in the case of registered or certified mail, when delivered or the first attempted delivery on a Business Day; or in the case of expedited prepaid delivery, upon the first attempted delivery on a Business Day.
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(b) Borrower shall indemnify, defend and hold harmless Lender and its officers, directors, agents, employees (and the successors and assigns of the foregoing) and any Person who is or will have been involved in the origination of the Loan, any Person who is or will have been involved in the servicing of the Loan secured hereby, any Person in whose name the encumbrance created by the Pledge Agreement is or will have been recorded, any Person who may hold or acquire or will have held a full or partial direct interest in the Loan (collectively, the “Lender Indemnitees”) from and against any and all other liabilities, obligations, losses, damages, penalties, actions, judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever (including, without limitation, the reasonable fees and disbursements of counsel for Lender Indemnitees in connection with any investigative, administrative or judicial proceeding commenced or threatened, whether or not a Lender Indemnitee shall be designated a party thereto), that may be imposed on, incurred by, or asserted against any Lender Indemnitee in any manner relating to or arising out of (i) any breach by Borrower or Equity Owner of its obligations under, or any material misrepresentation by Borrower or Equity Owner contained in, this Agreement or the other Loan Documents, or (ii) any breach by Borrower of its obligations related to the use or intended use of the WWP Fund (collectively, the “Indemnified Liabilities”); provided, however, that Borrower shall not have any obligation to any Indemnified Party hereunder to the extent that such Indemnified Liabilities arise from the gross negligence, illegal acts, fraud or willful misconduct of such Lender Indemnitees. To the extent that the undertaking to indemnify, defend and hold harmless set forth in the preceding sentence may be unenforceable because it violates any law or public policy, Borrower shall pay the maximum portion that it is permitted to pay and satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities incurred by the Lender Indemnitees.
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(c) Borrower covenants and agrees to pay for or, if Borrower fails to pay, to reimburse Lender for, any fees and expenses incurred by any Rating Agency in connection with any Rating Agency review of the Loan, the Loan Documents or any transaction contemplated thereby or any consent, approval, waiver or confirmation obtained from such Rating Agency following a Securitization pursuant to the terms and conditions of this Agreement or any other Loan Document and the Lender shall be entitled to require payment of such fees and expenses as a condition precedent to the obtaining of any such consent, approval, waiver or confirmation.
(d) In no event shall Borrower have any liability hereunder or under any other Loan Document for special, incidental, indirect or consequential damages.
(b) This Agreement and the other Loan Documents are solely for the benefit of Lender, Equity Owner and Borrower and nothing contained in this Agreement or the other Loan Documents shall be deemed to confer upon anyone other than Lender, Equity Owner and Borrower any right to insist upon or to enforce the performance or observance of any of the obligations contained herein or therein. All conditions to the obligations of Lender to make the Loan hereunder are imposed solely and exclusively for the benefit of Lender and no other Person shall have standing to require satisfaction of such conditions in accordance with their terms or be entitled to assume that Lender will refuse to make the Loan in the absence of strict compliance with any or all thereof and no other Person shall under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may be freely waived in whole or in part by Lender if, in Lender’s sole discretion, Lender deems it advisable or desirable to do so.
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(b) To the fullest extent permitted by law, Borrower and Equity Owner, for itself and its successors and assigns, waives all rights to a marshalling of the assets of Borrower, Equity Owner, Borrower’s and Equity Owner’s partners and others with interests in Borrower and Equity Owner, and of the Collateral, or to a sale in inverse order of alienation in the event of foreclosure of the Pledge Agreement, and agrees not to assert any right under any laws pertaining to the marshalling of assets, the sale in inverse order of alienation, the administration of estates of decedents, or any other matters whatsoever to defeat, reduce or affect the right of Lender under the Loan Documents to a sale of the Collateral for the collection of the Debt without any prior or different resort for collection or of the right of Lender to the payment of the Debt out of the net proceeds of the Collateral in preference to every other claimant whatsoever.
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(a) the right to routinely consult with and advise Borrower’s or Equity Owner’s management regarding the significant business activities and business and financial developments of Borrower or Equity Owner; provided, however, that such consultations shall not include discussions of environmental compliance programs or disposal of hazardous substances. Consultation meetings should occur on a regular basis (no less frequently than quarterly) with Lender having the right to call special meetings at any reasonable times and upon reasonable advance notice;
(b) the right, in accordance with the terms of this Agreement, to examine the books and records of Borrower and Equity Owner at any reasonable times upon reasonable notice;
(c) the right, in accordance with the terms of this Agreement, including, without limitation, Section 5.1.11 hereof, to receive monthly, quarterly and year end financial reports, including balance sheets, statements of income, shareholder’s equity and cash flow, a management report and schedules of outstanding indebtedness; and
(d) the right, without restricting any other rights of Lender under this Agreement (including any similar right), to approve any acquisition by Borrower or Equity Owner of any other significant property (other than personal property required for the day to day operation of the Property).
The rights described above in this Section 10.28 may be exercised by any entity which owns and Controls, directly or indirectly, substantially all of the interests in Lender.
(a) the effect of any Bail-In Action in relation to any such liability, including (without limitation):
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(i) a reduction, in full or in part, in the principal amount, or outstanding amount due (including any accrued but unpaid interest) in respect of any such liability; and/or
(ii) a conversion of all, or part of, any such liability into shares, other securities or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
(iii) a cancellation of any such liability; and
(b) a variation of any term of any Loan Document to the extent necessary to give effect to any Bail-In Action in relation to such liability.
Section 10.30. Contributions and Waivers.
(a) As a result of the transactions contemplated by this Agreement, each Borrower will benefit, directly and indirectly, from each Borrower’s obligation to pay the Debt and perform its Obligations and, in consideration therefor, each Borrower desires to enter into an allocation and contribution agreement among themselves as set forth in this Section 10.30 to allocate such benefits among themselves and to provide a fair and equitable agreement to make contributions among each of the Borrowers in the event any payment is made by any Individual Borrower hereunder to Lender (such payment being referred to herein as a “Contribution,” and for purposes of this Section 10.30, includes any exercise of recourse by Lender against any collateral of Borrower and application of proceeds of such collateral in satisfaction of such Borrower’s obligations to Lender under the Loan Documents).
(b) Each Borrower shall be liable hereunder with respect to the Obligations only for such total maximum amount (if any) that would not render its Obligations hereunder or under any of the Loan Documents subject to avoidance under Section 548 of the Bankruptcy Code or any comparable provisions of any State law.
(c) In order to provide for a fair and equitable contribution among Borrowers in the event that any Contribution is made by an Individual Borrower (a “Funding Borrower”), such Funding Borrower shall be entitled to a reimbursement Contribution (“Reimbursement Contribution”) from all other Borrowers for all payments, damages and expenses incurred by that Funding Borrower in discharging any of the Obligations, in the manner and to the extent set forth in this Section 10.30.
(d) For purposes hereof, the “Benefit Amount” of any Individual Borrower as of any date of determination shall be the net value of the benefits to such Borrower and its Affiliates from extensions of credit made by Lender to (a) such Borrower and (b) to the other Borrowers hereunder and the Loan Documents to the extent such other Borrowers have guaranteed or mortgaged their Property to secure the Obligations of such Borrower to Lender.
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(e) Each Borrower shall be liable to a Funding Borrower in an amount equal to the greater of (A) the (i) ratio of the Benefit Amount of such Borrower to the total amount of the Obligations, multiplied by (ii) the amount of Obligations paid by such Funding Borrower, or (B) ninety-five percent (95%) of the excess of the fair saleable value of the property of such Borrower over the total liabilities of such Borrower (including the maximum amount reasonably expected to become due in respect of contingent liabilities) determined as of the date on which the payment made by a Funding Borrower is deemed made for purposes hereof (giving effect to all payments made by other Funding Borrowers as of such date in a manner to maximize the amount of such Contributions).
(f) In the event that at any time there exists more than one Funding Borrower with respect to any Contribution (in any such case, the “Applicable Contribution”), then Reimbursement Contributions from other Borrowers pursuant hereto shall be allocated among such Funding Borrowers in proportion to the total amount of the Contribution made for or on account of the other Borrowers by each such Funding Borrower pursuant to the Applicable Contribution. In the event that at any time any Borrower pays an amount hereunder in excess of the amount calculated pursuant to this Section 10.30 above, that Borrower shall be deemed to be a Funding Borrower to the extent of such excess and shall be entitled to a Reimbursement Contribution from the other Borrowers in accordance with the provisions of this Section.
(g) Each Borrower acknowledges that the right to Reimbursement Contribution hereunder shall constitute an asset in favor of Borrower to which such Reimbursement Contribution is owing.
(h) No Reimbursement Contribution payments payable by a Borrower pursuant to the terms of this Section 10.30 shall be paid until all amounts then due and payable by all Borrowers to Lender pursuant to the terms of the Loan Documents are paid in full. Nothing contained in this Section 10.30 shall limit or affect in any way the Obligations of any Borrower to Lender under the Note or any other Loan Documents.
(i) Each Borrower waives (to the extent not prohibited by applicable law):
(i) any right to require Lender to proceed against any other Borrower or any other person or to proceed against or exhaust any security held by Lender at any time or to pursue any other remedy in Lender’s power before proceeding against Borrower;
(ii) any defense based upon the statute of limitations with respect to any other Borrower;
(iii) so long as the Loan is outstanding, any defense based upon any legal disability or other defense of any other Borrower, any guarantor of any other person or by reason of the cessation or limitation of the liability of any other Borrower or any guarantor from any cause other than full payment of all sums payable under the Note, this Agreement and any of the other Loan Documents;
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(iv) any defense based upon any lack of authority of the officers, directors, partners or agents acting or purporting to act on behalf of any other Borrower or any principal of any other Borrower or any defect in the formation of any other Borrower or any principal of any other Borrower;
(v) any defense based upon any failure of Lender to give notice of sale or other disposition of any collateral to any other Borrower; and
(vi) any defense or benefit based upon Borrower’s resignation of the portion of any obligation secured by the applicable Security Instruments or Pledge Agreement to be satisfied by any payment from any other Borrower or any such party.
(j) Each Borrower waives:
(i) all rights and defenses arising out of an election of remedies by Lender even though the election of remedies, such as nonjudicial foreclosure with respect to security for the Loan or any other amounts owing under the Loan Documents, has destroyed Borrower’s rights of subrogation and reimbursement against any other Borrower;
(ii) all rights and defenses that Borrower may have because any of the Debt is secured by real property such that: (i) Lender may collect from Borrower without first foreclosing on any real property or personal property pledged by any other Borrower, (ii) if Lender forecloses on any real property pledged by any other Borrower, (a) the amount of the Debt may be reduced only by the price for which such real property collateral is sold at the foreclosure sale, even if the real property collateral is worth more than the sale price, (b) Lender may collect from Borrower even if any other Borrower, by foreclosing on the real property collateral, has destroyed any right Borrower may have to collect from any other Borrower. This is an unconditional and irrevocable waiver of any rights and defenses Borrower may have because any of the Debt is secured by real property; and
(iii) any claim or other right which Borrower might now have or hereafter acquire against any other Borrower that arises from the existence or performance of any obligations under the Note, this Agreement, the Pledge Agreement or the other Loan Documents, including, without limitation, any of the following: (i) any right of subrogation, reimbursement, exoneration, contribution, or indemnification; or (ii) any right to participate in any claim or remedy of Lender against any other Borrower or any collateral security therefor, whether or not such claim, remedy or right arises in equity or under contract, statute or common law.
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(a) Borrower shall cause Mortgage Borrower and Equity Owner shall cause Operating Lessee (as applicable) (i) in a timely manner and subject to any applicable cure periods under the Mortgage Loan Documents to perform and observe all of the terms, covenants and conditions of the Mortgage Loan Documents on the part of Mortgage Borrower or Operating Lessee (as applicable) to be performed and observed; and (ii) provide Lender with a copy of any amendment or modification of, or waiver or consent granted under, the Mortgage Loan Documents within five (5) Business Days after its receipt thereof.
(b) Each of Borrower and Equity Owner agrees to notify Lender promptly upon Borrower’s or Equity Owner’s receipt of written notice that a default exists under the Mortgage Loan Documents.
(c) Lender shall have the right at any time to acquire all or any portion of the Mortgage Loan or any interest in any holder of, or participant in, the Mortgage Loan without notice or consent of Borrower or Equity Owner, in which event Lender shall have and may exercise all rights of Mortgage Lender thereunder (to the extent of its interest or rights therein), including the right (i) to declare that the Mortgage Loan is in default in accordance with the terms of the Mortgage Loan Agreement if such default shall exist under the Mortgage Loan Documents and (ii) to accelerate the Mortgage Loan indebtedness during the existence of an Mortgage Loan Event of Default, in accordance with the terms of the Mortgage Loan Agreement and (iii) to pursue all applicable remedies against any obligor under the Mortgage Loan Documents pursuant to the Mortgage Loan Documents.
(d) Notwithstanding anything to the contrary herein, if a Mortgage Loan Event of Default occurs and is continuing, any cure payment made by Lender shall be deemed to be (and recorded in the books and records as) an additional advance under the Loan to the Borrower that is secured by the Collateral followed by a capital contribution to the Mortgage Borrower and a payment by Mortgage Borrower to Mortgage Lender.
(e) Except as expressly permitted hereunder, Borrower shall not make or permit to be made any full prepayment of the Mortgage Loan or any full refinancing of the Mortgage Loan without the prior written consent of Lender (other than in connection with a prepayment of the Mortgage Loan expressly permitted pursuant to this Agreement and the Mortgage Loan Agreement or a prepayment of the Mortgage Loan with simultaneous prepayment of the Loan).
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(f) If any default or Event of Default (as defined in the Mortgage Loan Agreement) occurs under the Mortgage Loan Documents beyond applicable notice and cure periods, each of Borrower and Equity Owner agrees that Lender shall have the immediate right to (but shall be under no obligation to), without prior notice to Borrower or Equity Owner: (i) pay all or any part of the Mortgage Loan and any other sums that are then due and payable, and perform any act or take any action on behalf of Borrower, Equity Owner, Operating Lessee Pledgor, Operating Lessee and/or Mortgage Borrower as may be appropriate, to cause all of the terms, covenants and conditions of the Mortgage Loan Documents on the part of Mortgage Borrower or Operating Lessee to be performed or observed thereunder to be promptly performed or observed; and (ii) pay any other amounts and take any other action as Lender, in its sole and absolute discretion, shall deem advisable to protect or preserve the rights and interests of Lender in the Loan and/or the Collateral. Borrower and Equity Owner shall not impede, interfere with, hinder or delay, and shall not permit Mortgage Borrower and Operating Lessee to impede, interfere with, hinder or delay, any effort or action on the part of Lender to cure any default beyond applicable grace or notice periods under the Mortgage Loan, or to otherwise protect or preserve Lender’s interests in the Loan and the Collateral following a Mortgage Loan Event of Default or default beyond applicable grace or notice periods under the Mortgage Loan (other than a good faith defense of Mortgage Borrower or Operating Lessee that such Mortgage Loan Event of Default or asserted default under the Mortgage Loan does not exist). Borrower and Equity Owner hereby grants Lender and its designees the right to enter upon the Property at any time while an Event of Default exists, or the assertion by Mortgage Lender that a Mortgage Loan Event of Default has occurred, under the Mortgage Loan Documents, for the purpose of taking any such action or to appear in, defend or bring any action or proceeding to protect Lender’s interest. Lender may take such action as Lender deems necessary to carry out the intents and purposes of this Section 10.31(f) (including communicating with Mortgage Lender with respect to any Mortgage Loan defaults), without prior notice to, or consent from, Borrower, Equity Owner, Operating Lessee Pledgor, Operating Lessee or Mortgage Borrower. Lender shall have no obligation to complete any cure or attempted cure undertaken or commenced by Lender. All sums so paid and the costs and expenses incurred by Lender in exercising rights under this Section 10.31(f) (including its reasonable attorneys’ fees and costs) (A) shall be added to the Debt, (B) shall bear interest at the Default Rate for the period from the date that such costs or expenses were incurred to the date of payment to Lender, and (C) shall be secured by the Pledge Agreement. Borrower hereby indemnifies Lender from and against all Losses of any kind or nature whatsoever which may be imposed on, incurred by or asserted against Lender (but excluding special, incidental, indirect or consequential damages) as a result of the foregoing actions, excluding such Losses arising from the willful misconduct or illegal acts of Lender. In the event that Lender makes any payment in respect of the Mortgage Loan, Lender shall be subrogated to all of the rights of Mortgage Lender under the Mortgage Loan Documents against the Property, in addition to all other rights it may have under the Loan Documents. If Lender shall receive a copy of any notice of default under the Mortgage Loan Documents sent by Mortgage Lender, such notice shall constitute full protection to Lender for any action taken or omitted to be taken by Lender, in good faith, in reliance thereon. As a material inducement to Lender’s making the Loan, Borrower hereby absolutely and unconditionally releases and waives all claims against Lender arising out of Lender’s exercise of its rights and remedies provided in this Section 10.31(f), except for Lender’s willful misconduct or illegal acts.
(g) Each of Borrower and Equity Owner covenants, subject to the Mortgage Lender’s rights under the Mortgage Loan, to remit (or cause the Mortgage Borrower to remit) to Lender all title insurance proceeds paid by the title insurance company under the owner’s Title Insurance Policy, provided, in no event shall the sums paid to Lender exceed the amount of the Debt prior to the acquisition by Lender of some or all of the Collateral.
(h) Borrower shall use commercially reasonable efforts to cause Mortgage Borrower to, from time to time (but not more often than once in any twelve (12) month period (unless such request is made in connection with a Secondary Market Transaction or during the existence of an Event of Default, in which case such limitation shall not apply), obtain from Mortgage Lender such certificates of estoppel with respect to compliance by Mortgage Borrower and Operating Lessee with the terms of the Mortgage Loan Documents as may be reasonably requested by Lender.
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(i) In connection with the exercise of its rights set forth in the Loan Documents, Lender shall have the right at any time to discuss the Properties, the Mortgage Loan, the Loan, and any other matter directly with Mortgage Lender and any property manager (including Manager) and their respective consultants, agents or representatives, as applicable, without notice to or permission from Borrower or Equity Owner, nor shall Lender have any obligation to disclose such discussions or the contents thereof to Borrower, Equity Owner or any other Person.
(j) If any action, proposed action or other decision is consented to or approved by Mortgage Lender, such consent or approval shall not be binding or controlling on Lender (except as set forth in Section 2.5.2 and Section 2.8 hereof with respect to the determination by Mortgage Lender of Debt Yield). Borrower hereby acknowledges and agrees that (i) the risks of Mortgage Lender in making the Mortgage Loan are different from the risks of Lender in making the Loan, (ii) in determining whether to grant, deny, withhold or condition any requested consent or approval, Mortgage Lender and Lender may reasonably reach different conclusions, and (iii) Lender has an absolute independent right to grant, deny, withhold or condition any requested consent or approval based on its own point of view, but subject to the standards of consent set forth herein.
[NO FURTHER TEXT ON THIS PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.
MEZZANINE BORROWER:
ARC MEZZ NY22936001, LLC, a Delaware limited liability company
By: New York Recovery Operating Partnership, L.P., a Delaware limited partnership
By: New York REIT, Inc., a Maryland corporation
By: /s/ Xxxxxxx Ead
Name: Xxxxxxx Ead
Title: Authorized Signatory
ARC MEZZ NY21618001, LLC, a Delaware limited liability company
By: New York Recovery Operating Partnership, L.P., a Delaware limited partnership
By: New York REIT, Inc., a Maryland corporation
By: /s/ Xxxxxxx Ead
Name: Xxxxxxx Ead
Title: Authorized Signatory
ARC NY333W3401 MEZZ, LLC, a Delaware limited liability company
By: New York Recovery Operating Partnership, L.P., a Delaware limited partnership
By: New York REIT, Inc., a Maryland corporation
By: /s/ Xxxxxxx Ead
Name: Xxxxxxx Ead
Title: Authorized Signatory
[Signature Page to Mezzanine Loan Agreement]
ARC NY350BL001 MEZZ, LLC, a Delaware limited liability company
By: New York Recovery Operating Partnership, L.P., a Delaware limited partnership
By: New York REIT, Inc., a Maryland corporation
By: /s/ Xxxxxxx Ead
Name: Xxxxxxx Ead
Title: Authorized Signatory
ARC NYBLKST002 MEZZ, LLC, a Delaware limited liability company
By: New York Recovery Operating Partnership, L.P., a Delaware limited partnership
By: New York REIT, Inc., a Maryland corporation
By: /s/ Xxxxxxx Ead
Name: Xxxxxxx Ead
Title: Authorized Signatory
ARC NYCTGRG001 MEZZ, LLC, a Delaware limited liability company
By: New York Recovery Operating Partnership, L.P., a Delaware limited partnership
By: New York REIT, Inc., a Maryland corporation
By: /s/ Xxxxxxx Ead
Name: Xxxxxxx Ead
Title: Authorized Signatory
[Signature Page to Mezzanine Loan Agreement]
ARC NYWSHST001 MEZZ, LLC, a Delaware limited liability company
By: New York Recovery Operating Partnership, L.P., a Delaware limited partnership
By: New York REIT, Inc., a Maryland corporation
By: /s/ Xxxxxxx Ead
Name: Xxxxxxx Ead
Title: Authorized Signatory
ARC NYGRNAV001 MEZZ, LLC, a Delaware limited liability company
By: New York Recovery Operating Partnership, L.P., a Delaware limited partnership
By: New York REIT, Inc., a Maryland corporation
By: /s/ Xxxxxxx Ead
Name: Xxxxxxx Ead
Title: Authorized Signatory
ARC NYW42ST001 MEZZ, LLC, a Delaware limited liability company
By: New York Recovery Operating Partnership, L.P., a Delaware limited partnership
By: New York REIT, Inc., a Maryland corporation
By: /s/ Xxxxxxx Ead
Name: Xxxxxxx Ead
Title: Authorized Signatory
[Signature Page to Mezzanine Loan Agreement]
ARC NY120W5701 MEZZ, LLC, a Delaware limited liability company
By: New York Recovery Operating Partnership, L.P., a Delaware limited partnership
By: New York REIT, Inc., a Maryland corporation
By: /s/ Xxxxxxx Ead
Name: Xxxxxxx Ead
Title: Authorized Signatory
ARC NY24549W17 MEZZ, LLC, a Delaware limited liability company
By: New York Recovery Operating Partnership, L.P., a Delaware limited partnership
By: New York REIT, Inc., a Maryland corporation
By: /s/ Xxxxxxx Ead
Name: Xxxxxxx Ead
Title: Authorized Signatory
50 VARICK MEZZ LLC, a Delaware limited liability company
By: New York Recovery Operating Partnership, L.P., a Delaware limited partnership
By: New York REIT, Inc., a Maryland corporation
By: /s/ Xxxxxxx Ead
Name: Xxxxxxx Ead
Title: Authorized Signatory
[Signature Page to Mezzanine Loan Agreement]
INITIAL LENDER:
COLUMN FINANCIAL, INC., a Delaware corporation
By: /s/ N. Xxxxx XxXxxxx
Name: N. Xxxxx XxXxxxx
Title: Authorized Signatory
[Signature Page to Mezzanine Loan Agreement]
AGENT:
COLUMN FINANCIAL, INC., a Delaware corporation
By: /s/ N. Xxxxx XxXxxxx
Name: N. Xxxxx XxXxxxx
Title: Authorized Signatory
[Signature Page to Mezzanine Loan Agreement]
Acknowledged and Agreed (solely with respect to Sections 2.4.2, 2.6, 7.1, 7.2, 9.1.1, 9.2(a), 9.4(b) and 9.5 and Articles IV, V, VI, VIII and X hereof):
EQUITY OWNER:
ARC NY120W5701 TRS MEZZ, LLC, a Delaware limited liability company
By: New York Recovery Operating Partnership, L.P., a Delaware limited partnership
By: New York REIT, Inc., a Maryland corporation
By: /s/ Xxxxxxx Ead
Name: Xxxxxxx Ead
Title: Authorized Signatory
[Signature Page to Mezzanine Loan Agreement]
SCHEDULE I
(Borrower)
ARC Mezz NY22936001, LLC, a Delaware limited liability company
ARC Mezz NY21618001, LLC, a Delaware limited liability company
ARC NY333W3401 Mezz, LLC, a Delaware limited liability company
ARC NY350BL001 Mezz, LLC, a Delaware limited liability company
ARC NYBLKST002 Mezz, LLC, a Delaware limited liability company
ARC NYCTGRG001 Mezz, LLC, a Delaware limited liability company
ARC NYWSHST001 Mezz, LLC, a Delaware limited liability company
ARC NYGRNAV001 Mezz, LLC, a Delaware limited liability company
ARC NYW42ST001 Mezz, LLC, a Delaware limited liability company
ARC NY120W5701 Mezz, LLC, a Delaware limited liability company
ARC NY24549W17 Mezz, LLC, a Delaware limited liability company
50 Varick Mezz LLC, a Delaware limited liability company
SCH. I-1 |
Schedule II
(Mortgage Borrower)
ARC NY22936001, LLC, a Delaware limited liability company
ARC NY21618001, LLC, a Delaware limited liability company
ARC NY333W3401, LLC, a Delaware limited liability company
ARC NY350BL001, LLC, a Delaware limited liability company
ARC NYBLKST002, LLC, a Delaware limited liability company
ARC NYCTGRG001, LLC, a Delaware limited liability company
ARC NYWSHST001, LLC, a Delaware limited liability company
ARC NYGRNAV001, LLC, a Delaware limited liability company
ARC NYW42ST001, LLC, a Delaware limited liability company
ARC NY120W5701, LLC, a Delaware limited liability company
ARC NY24549W17, LLC, a Delaware limited liability company
50 Varick LLC, a New York limited liability company
SCH. II-1 |
SCHEDULE III
(Properties)
Borrower | Property Name | Xxxxxx Xxxxxxx | Xxxxxx | Xxxx | Xxxxx | Xxx Xxxx | ||||||||
0. | XXX XX00000X00 Mezz, LLC | Twitter Building | 000-000 Xxxx 00xx Xxxxxx | Xxx Xxxx | Xxx Xxxx | XX | 00000 | |||||||
2. | ARC NY333W3401 Mezz, LLC | 000 X 00xx Xxxxxx | 000 Xxxx 00xx Xxxxxx | Xxx Xxxx | Xxx Xxxx | XX | 00000 | |||||||
3. | ARC Mezz NY21618001, LLC | The Red Bull Building | 216-218 West 18th Street | New York | Xxx Xxxx | XX | 00000 | |||||||
4. | 50 Varick Mezz LLC | 00 Xxxxxx Xxxxxx | 00 Xxxxxx Xxxxxx | Xxx Xxxx | Xxx Xxxx | XX | 00000 | |||||||
5. | ARC Mezz NY22936001, LLC | 000 Xxxx 00xx Xxxxxx | 000 Xxxx 00xx Xxxxxx | Xxx Xxxx | Xxx Xxxx | XX | 00000 | |||||||
6. | ARC NYGRNAV001 Mezz, LLC | One Xxxxxxx Square Retail | 000 Xxxxxxxxx Xxxxxx | Xxx Xxxx | Xxx Xxxx | XX | 00000 | |||||||
7. | ARC NYW42ST001 Mezz, LLC | 00xx Xxxxxx Retail | 000 Xxxx 00xx Xxxxxx | Xxx Xxxx | Xxx Xxxx | XX | 00000 | |||||||
8. | ARC NYBLKST002 Mezz, LLC | Bleecker Street Retail | 000-000 Xxxxxxxx Xxxxxx | Xxx Xxxx | Xxx Xxxx | XX | 00000 | |||||||
9. | ARC NY350BL001 Mezz, LLC | 000 Xxxxxxxx Xxxxxx | 000 Xxxxxxxx Xxxxxx | Xxx Xxxx | Xxx Xxxx | XX | 00000 | |||||||
10. | ARC NYWSHST001 Mezz, LLC | Washington Street Retail | 000-000 Xxxxxxxxxx Xxxxxx | Xxx Xxxx | Xxx Xxxx | XX | 00000 | |||||||
11. | ARC NYCCTGRG001 Mezz, LLC | Centurion Garage | 00 Xxxx 00xx Xxxxxx | Xxx Xxxx | Xxx Xxxx | XX | 00000 | |||||||
12. | ARC NY120W5701 Mezz, LLC | Viceroy Hotel | 000 Xxxx 00xx Xxxxxx | Xxx Xxxx | Xxx Xxxx | XX | 00000 |
SCH. III-1 |
SCHEDULE IV
(Rent Roll)
See attached.
SCH. IV-1 |
SCHEDULE V
(Organizational Structure)
See attached.
SCH. V-1 |
SCHEDULE VI
(Litigation)
1. | RXR WWP Owner LLC v. WWP Sponsor, LLC, WWP Holdings, LLC, American Realty Capital Properties, Inc. d/b/a American Realty Capital, and American Realty Capital New York Recovery REIT, Inc., Index No. 653553/2013 (Supreme Court of the State of New York, New York County, October 14, 2013). |
2. | The Xxxxx Company (Eastern States), Inc. v. 333W34 SLG Owner LLC, ARC NY333W3401, LLC and Xxx Ash Megastores LLC, Index No. 650244/2015 (Supreme Court of the State of New York, New York County, January 28, 2015). |
3. | 130 West 57 Company v. Ricland, L.L.C., AREP FIFTY-SEVENTH LLC and ARC NY120W5701, LLC, Index No. 156224/2016 (Supreme Court of the State of New York, New York County, July 27, 2016). |
SCH. VI-1 |
SCHEDULE VII
(Allocated Loan Amounts)
Borrower | Property Name | Street Address | City | State | Allocated
Loan Amount | |||||||||
1. | ARC NY24549W17, LLC | Twitter Building | 000-000 Xxxx 00xx Xxxxxx | Xxx Xxxx | XX | |||||||||
2. | ARC NY333W3401, LLC | 000 X 00xx Xxxxxx | 000 Xxxx 00xx Xxxxxx | Xxx Xxxx | XX | $ | 57,521,961.00 | |||||||
3. | ARC NY21618001, LLC | The Red Bull Building | 000-000 Xxxx 00xx Xxxxxx | Xxx Xxxx | XX | $ | 34,513,178.00 | |||||||
4. | 50 Varick LLC | 00 Xxxxxx Xxxxxx | 00 Xxxxxx Xxxxxx | Xxx Xxxx | XX | $ | 26,706,625.00 | |||||||
5. | ARC NY22936001, LLC | 000 Xxxx 00xx Xxxxxx | 000 Xxxx 00xx Xxxxxx | Xxx Xxxx | XX | $ | 20,543,557.00 | |||||||
6. | ARC NYGRNAV001, LLC | One Xxxxxxx Square Retail | 000 Xxxxxxxxx Xxxxxx | Xxx Xxxx | XX | $ | 6,760,000.00 | |||||||
7. | ARC NYW42ST001, LLC | 00xx Xxxxxx Retail | 000 Xxxx 00xx Xxxxxx | Xxx Xxxx | XX | $ | 5,909,800.00 | |||||||
8. | ARC NYBLKST002, LLC | Bleecker Street Retail | 000-000 Xxxxxxxx Xxxxxx | Xxx Xxxx | XX | $ | 6,671,053.00 | |||||||
9. | ARC NY350BL001, LLC | 000 Xxxxxxxx Xxxxxx | 000 Xxxxxxxx Xxxxxx | Xxx Xxxx | XX | $ | 4,314,147.00 | |||||||
10. | ARC NYWSHST001, LLC | Washington Street Retail | 000-000 Xxxxxxxxxx Xxxxxx | Xxx Xxxx | XX | $ | 2,876,098.00 | |||||||
11. | ARC NYCCTGRG001, LLC | Centurion Garage | 00 Xxxx 00xx Xxxxxx | Xxx Xxxx | XX | $ | 1,376,418.00 | |||||||
12. | ARC NY120W5701, LLC | Viceroy Hotel | 000 Xxxx 00xx Xxxxxx | Xxx Xxxx | XX | $ | 16,796,000.00 |
SCH. VII-1 |
SCHEDULE VIII
(Managers and Management Agreements)
Manager | Management Agreement | |||
1 | KHM Viceroy New York, LLC, a Delaware limited liability company | That certain Hotel Management Agreement, effective as of February 20, 2013, by and between AREP Fifty-Seventh LLC and KHM Viceroy New York, LLC, as assigned to ARC NY120W5701, LLC pursuant to that certain Assignment and Assumption of Leases, Contracts, Bookings, Licenses and Permits, Guarantees and Intangible Property, dated as of November 18, 2013, by and between KHM Viceroy New York, LLC, as assignor, and ARC NY120W5701, LLC, as assignee, and as further assigned to ARC NY120W5701 TRS, LLC pursuant to that certain Assignment and Assumption of Management Agreement, Leases and Contracts, dated as of November 18, 2013, by and between ARC NY120W5701, LLC, as assignor, and ARC NY120W5701 TRS, LLC, as assignee | ||
2 | CBRE, Inc., a Delaware corporation |
1. That certain Management Agreement dated as of December 27, 2012, by and between ARC NY22936001, LLC and CBRE, Inc., as amended by that certain Amendment to Management Agreement dated as of July 15, 2014 2. That certain Management Agreement dated as of March 26, 2013, by and between ARC NY21618001, LLC and CBRE, Inc., as amended by that certain Amendment to Management Agreement dated as of July 15, 2014 3. That certain Management Agreement dated as of August 1, 2013 by and between ARC NY333W3401, LLC and CBRE, Inc., as amended by that certain Amendment to Management Agreement dated as of July 15, 2014 4. That certain Management Agreement dated as of December 1, 2015, by and between ARC NY24549W17, LLC and CBRE, Inc. | ||
3 | New York Recovery Properties, LLC, a Delaware limited liability company | That certain Amended and Restated Management Agreement, dated as of September 2, 2010, by and among the New York REIT, Inc. (as successor in interest to American Realty Capital New York Recovery REIT, Inc.), New York Recovery Operating Partnership, L.P., a Delaware limited partnership and New York Recovery Properties, LLC | ||
0 | Xxxxxx Xxxxxx Xxxxxxx XXX, x Xxx Xxxx limited liability company | That certain Management Agreement, dated as of November 26, 2013, by and between ARC NYWSHST001, LLC and Laight Street Parking LLC |
SCH. VIII-1 |
SCHEDULE IX
(Condominium Documents, Board Members, Common Charges and Units of Borrower)
See attached.
SCH. IX-1 |
SCHEDULE X
(Collective Bargaining Agreements)1
1. | Agreement dated as of May ___, 2013, and effective as of July 1, 2013 by and among Hotel Association of New York City, Inc., on its own behalf and on behalf of its bargaining group hotels, the Associated Hotel and Motels of Greater New York, on its own behalf and on behalf of its bargaining group hotels, and the New York Hotel & Motel Trades Council, AFL-CIO. |
2. | Agreement dated September 13, 2013 by and among KHM Viceroy New York LLC d/b/a Viceroy Hotel Group, AREP Fifty-Seventh LLC d/b/a Viceroy Hotel New York and the New York Hotel & Motel Trades Council, AFL-CIO. |
3. | Notice letter dated November 5, 2013 from the New York Hotel & Motel Trades Council, AFL-CIO to Viceroy Hotel New York regarding intent of the Union to organize. |
4. | Memorandum of Agreement dated February ___, 2014 by and among NY120W5701, LLC d/b/a Viceroy Hotel New York, KHM Viceroy New York, LLC d/b/a Viceroy Hotel Group and the New York Hotel & Motel Trades Council, AFL-CIO. |
5. | Voluntary Settlement Agreement (Hotel) dated as of March 13, 2014 by and among ARC NY120W5701, LLC, KHM Viceroy New York, LLC and the New York Hotel & Motel Trades Council, AFL-CIO. |
6. | Voluntary Settlement Agreement (Concierge) dated as of March 13, 2014 by and among ARC NY120W5701, LLC, KHM Viceroy New York, LLC and the New York Hotel & Motel Trades Council, AFL-CIO. |
7. | Agreement dated February 24, 2015 by and between the New York Hotel & Motel Trades Council, AFL-CIO and the Viceroy Hotel. |
8. | Agreement dated May ___, 2015, by and between the Viceroy Hotel and New York Hotel & Motel Trades Council, AFL-CIO. |
9. | Memorandum of Understanding dated June ___, 2015 by and among Hotel Association of New York City, Inc., the Associated Hotel and Motels of Greater New York, on its own behalf and on behalf of its bargaining group hotels, and the New York Hotel & Motel Trades Council, AFL-CIO. |
1 Borrower to complete
SCH. X-1 |
SCHEDULE XI
(Property Condition Reports and Environmental Reports)
No. | Property | Report | ||
1. | Centurion Garage | That certain Phase I Environmental Site Assessment Report issued by Partner Assessment Corporation on October 21, 2016 as Partner Project Number 16-172156.11 | ||
2. | 00 Xxxxxx Xxxxxx | That certain Phase I Environmental Site Assessment Report issued by Partner Assessment Corporation on October 21, 2016 as Partner Project Number 16-172156.4 | ||
3. | Twitter Building | That certain Phase I Environmental Site Assessment Report issued by Partner Assessment Corporation on October 21, 2016 as Partner Project Number 16-172156.1 | ||
4. | 000 Xxxx 00xx Xxxxxx | That certain Phase I Environmental Site Assessment Report issued by Partner Assessment Corporation on October 21, 2016 as Partner Project Number 16-172156.5 | ||
5. | Bleecker Street Retail | That certain Phase I Environmental Site Assessment Report issued by Partner Assessment Corporation on October 21, 2016 as Partner Project Number 16-172156.8 | ||
6. | 00xx Xxxxxx Retail | That certain Property Condition Report issued by Partner Assessment Corporation on October 21, 2016 as Partner Project Number 16-172156.7 | ||
7. | Viceroy Hotel | That certain Property Condition Report issued by Partner Assessment Corporation on October 21, 2016 as Partner Project Number 16-172156.12 |
SCH. XI-1 |
SCHEDULE XII
(Required Repairs Deadlines for Completion)
No. | Property | Required Repair | Completion Deadline | |||
1. | Centurion Garage |
(i) Leaking hydraulic equipment within parking garage to be repaired with improved housekeeping strategies implemented (ii) Existing stains to be properly cleaned (iii) Leaking air-handling unit within parking garage to be repaired |
Within sixty (60) days of the Closing Date | |||
2. | 00 Xxxxxx Xxxxxx | Damaged friable asbestos to be abated | Within one hundred twenty (120) days of the Closing Date | |||
3. | Twitter Building | Storage tank to be registered with New York Fire Department | Within sixty (60) days of the Closing Date | |||
4. | 000 Xxxx 00xx Xxxxxx | Storage tank to be registered with New York State Department of Environmental Conservation | Within sixty (60) days of the Closing Date | |||
5. | Bleecker Street Retail | Storage tank to be registered with New York State Department of Environmental Conservation | Within sixty (60) days of the Closing Date | |||
6. | 00xx Xxxxxx Retail | Two existing automobile elevator violations to be remedied | Within sixty (60) days of the Closing Date | |||
7. | Viceroy Hotel | XXXX roof spot (29th floor) to be repaired | Within one hundred twenty (120) days of the Closing Date |
SCH. XII-1 |
SCHEDULE XIII
(O&M Programs)
See attached.
SCH. XIII-1 |
SCHEDULE XIV
(Pre-Approved Managers)
1. | Winthrop Management LP and its Affiliates |
2. | CBRE Group, Inc. |
3. | Xxxxx Lang LaSalle, Inc. |
4. | Xxxxxxx & Xxxxxxxxx, Inc. |
5. | Newmark, Grubb, Xxxxxx, Xxxxx |
SCH. XVI-1 |