Extension Options. Subject to the provisions of this Section 2.7, Borrowers shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11, 2020 (the “First Extended Maturity Date”). In the event Borrowers shall have duly exercised the First Extension Option, Borrowers shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11, 2021 (the “Second Extended Maturity Date”). Borrowers’ right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option): (a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver the First Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable; (b) Borrowers shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement; (c) Agent shall have received a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent; (d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full; (e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee; (f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion; (g) In connection with the exercise of the First Extension Option: (i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and (ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay. (h) In connection with the exercise of the Second Extension Option only: (i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and (ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay. (i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser; (j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and (k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunder.
Appears in 1 contract
Sources: Loan Agreement (Pacific Office Properties Trust, Inc.)
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days and no earlier than sixty (60) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11November 9, 2020 2019 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days and no earlier than sixty (60) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 9, 2021 2020 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by irrevocable written notice (the “Third Extension Notice”) delivered to Agent no later than thirty (30) days and no earlier than sixty (60) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 9, 2021 (the “Third Extended Maturity Date”). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default of which notice has been given to Borrower or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice or the Second Third Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default of which notice has been given to Borrower or Event of Default shall have occurred and be continuing on the Stated Maturity Date and Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and occurs, (B) have a strike price equal to the Extension Strike Price, and (C) otherwise on the same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent Borrower shall have received deliver a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title Counterparty Opinion with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agentrelated Acknowledgment;
(d) All all amounts due and payable by Borrowers Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date, the First Extended Maturity Date or the First Second Extended Maturity Date, as applicable, and all out-of-pocket costs and expenses of Agent and Lenders, including reasonable fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or on the Second Extension NoticeExtended Maturity Date and the Third Extended Maturity Date, as applicable, Borrowers Borrower shall pay to Agent the applicable Extension Fee;
(f) There the Properties shall have achieved, on the date Borrower delivers the First Extension Notice, the Second Extension Notice or the Third Extension Notice, as applicable, and on the Stated Maturity Date, the First Extended Maturity Date and the Second Extended Maturity Date, respectively, a Debt Yield of no less than 5.30%; provided, however, if the Properties do not satisfy the foregoing Debt Yield requirements provided in this Section 2.7.1(f), Borrower (and Mortgage Borrower) shall be no challengepermitted to prepay, actionon a pro rata basis, suit, proceeding, or investigation is pending or threatened a portion of the Loan (subject to and in writing against any part accordance with Section 2.4.2) and Mortgage Borrower shall make a pro rata payment of any Property or any Borrower by any person, the Mortgage Loan (subject to and in any court or before any Governmental Authority which is reasonably likely to materially adversely affect accordance with the value provisions of any Property, as determined by Agent acting the Mortgage Loan Agreement) in its reasonable discretionan amount that would be sufficient such that the applicable Debt Yield test set forth above shall be satisfied;
(g) In connection with the exercise of the First Extension Option:
Mortgage Borrower shall have (i) timely exercised the Debt Yield as of extension option to extend the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateMortgage Loan, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSA, terms of the Mortgage Loan Documents to exercise such extension option and (iii) paid any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of extension fee required pursuant to which Guarantor reaffirms all the terms of its obligations under each the Mortgage Loan Document to which such Guarantor is a party in a form reasonably acceptable to AgentAgreement. If Borrowers Borrower are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend or further extend (as applicable) the applicable Stated Maturity Date hereunder.
Appears in 1 contract
Sources: First Mezzanine Loan Agreement (Clipper Realty Inc.)
Extension Options. Subject to the provisions of this Section 2.7, Borrowers . Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the Initial Stated Maturity Date, to extend the Maturity Date to August 11May 1, 2020 2017 (the “First Extended Maturity Date”, and such extended term, the “First Extended Term”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11May 1, 2021 2018 (the “Second Extended Maturity Date”, and such extended term, the “Second Extended Term”), In the event Borrower shall have exercised each of the First Extension Option and the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to May 1, 2019 (the “Third Extended Maturity Date”, and such extended term, the “Third Extended Term”). Borrowers’ The First Extension Notice shall be revocable at any time and for any reason by Borrower prior to the Initial Stated Maturity Date, the Second Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then First Extended Maturity Date and the Third Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then Second Extended Maturity Date, but Borrower shall pay Lender’s actual out-of-pocket expenses incurred in connection with such revocation (excluding breakage costs). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice or the Second Third Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Initial Stated Maturity Date and Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to Lender on the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal BalanceBalance as of the first day of the applicable Extended Term, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and 2.6, (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement, and (iii) execute and deliver a collateral assignment of the Replacement Interest Rate Cap Agreement, in the form of the Assignment of Interest Rate Cap Agreement. Lender (or its Affiliates) shall have the right to match the best economic terms available to Borrower (as determined by Borrower), and provide the Replacement Interest Rate Cap Agreements, subject to the requirements hereunder;
(c) Agent Borrower shall have received cause a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only Counterparty Opinion to Permitted Encumbrances, (y) showing title be delivered with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agentrelated Acknowledgment;
(d) All all amounts then due and payable (beyond the expiration of any applicable notice and cure periods) by Borrowers and any other Person Borrower pursuant to this Agreement or the other Loan Documents as of the Initial Stated Maturity Date, the First Extended Maturity Date or the First Second Extended Maturity Date, as applicable, and all out-of-pocket costs and expenses of Agent and LendersLender, including reasonable fees and expenses of Agent’s and each Lender’s outside counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On with respect to the date exercise of delivery of the First Extension Notice or the Second Extension NoticeOption, as applicable, Borrowers Borrower shall pay to Agent Lender the applicable Extension FeeFee on the First Extended Maturity Date, and with respect to the exercise of the Third Extension Option, Borrower shall pay to Lender the Extension Fee on the Second Extended Maturity Date;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as (based on unaudited financial statements from the trailing twelve-month period ending the last day of February of the Stated Maturity Date applicable calendar year) shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or no less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second applicable Minimum Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion first day of the Outstanding Principal Balance as Second Extended Term or the first day of the First Third Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirementTerm, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateapplicable, and (ii) to after the extent such representation or warranty is no longer true as a result Approved Mezzanine Closing Date, the Aggregate Debt Yield (based on unaudited financial statements from the trailing twelve-month period ending the last day of February of the passage of time, applicable calendar year) shall be no less than the ordinary course of conduct of Borrowers, the sale applicable Minimum Aggregate Debt Yield as of the Pan Am Property pursuant to first day of the ▇▇▇ Am PSASecond Extended Term or the first day of the Third Extended Term, and any actions expressly permitted under the Loan Documents, provided that Borrowersas applicable, in each case, have complied with their covenants contained in after application of any prepayments made by Borrower and Owner and the Loan DocumentsApproved Mezzanine Borrower as permitted by Section 2.4.2(a) or Section 2.4.2(b); and
(kg) Guarantor continues Each of Owner and Approved Mezzanine Borrower shall have (i) timely exercised the extension option to comply with extend the covenants contained in the applicable Mortgage Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of Approved Mezzanine Loan and (ii) been entitled pursuant to which Guarantor reaffirms all the terms of its obligations under each the Mortgage Loan Document Documents and Approved Mezzanine Loan Documents, as applicable, to which exercise such Guarantor is a party in a form reasonably acceptable extension option and (iii) paid any extension fee required pursuant to Agentthe terms of the Mortgage Loan and the Approved Mezzanine Loan, as applicable. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunderDate.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (American Realty Capital Hospitality Trust, Inc.)
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty fifteen (3015) days prior to the Stated Maturity Date, to extend the Maturity Date to August March 11, 2020 2018 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty fifteen (3015) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August March 11, 2021 2019 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender no later than fifteen (15) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to March 11, 2020 (the “Third Extended Maturity Date”). In the event Borrower shall have exercised the Third Extension Option, Borrower shall have the option (the “Fourth Extension Option”), by written notice (the “Fourth Extension Notice”) delivered to Lender no later than fifteen (15) days prior to the Third Extended Maturity Date, to extend the Third Extended Maturity Date to March 11, 2021 (the “Fourth Extended Maturity Date”). Any Extension Notice may be revoked by Borrower at any time, and Borrower shall reimburse Lender for any reasonable out-of-pocket costs and expenses, including reasonable attorney’s fees and disbursements, incurred directly in conjunction with preparing for the applicable extension. Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice, the Third Extension Notice or the Second Fourth Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date, the First Extended Maturity Date, the Second Extended Maturity Date and the First Third Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day of the term of the Loan as extended, Lender one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent Borrower shall have received deliver a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title Counterparty Opinion with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;related Acknowledgment; and
(d) All amounts due and payable by Borrowers Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date, the First Extended Maturity Date, the Second Extended Maturity Date or the First Third Extended Maturity Date, as applicable, and all reasonable out-of-pocket costs and expenses of Agent and LendersLender, including reasonable out-of-pocket fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice. Neither Lender, as applicablenor any other Person, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in charge an amount sufficient extension fee to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to AgentBorrower. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Stated Maturity Date hereunder.
Appears in 1 contract
Sources: Loan Agreement (Alexanders Inc)
Extension Options. Subject Landlord agrees that Tenant shall have, and it is hereby granted, two (2) successive options (the “Extension Options”) to extend the Term as to any Property Location or Property Locations, in Tenant’s sole discretion, for a period of ten (10) years each (individually, an “Extension Period”, and collectively, the “Extension Periods”), each such Extension Period to begin respectively upon the expiration of the initial Term or the prior Extension Period, as the case may be. All of the terms, covenants and provisions of this Lease shall apply to each Extension Period with respect to the Property Locations that Tenant elects to extend, except that Base Rent for each of the Extension Periods shall continue to be adjusted pursuant to the terms of Sections 1.04 and 2.01 below, payable in equal monthly installments as Monthly Base Rent (as hereinafter defined in Section 2.72.01). In order to exercise the Extension Options, Borrowers Tenant shall have give Landlord notice of such exercise (which notice shall identify the one-time option Property Locations that are to be extended) no later than one hundred twenty (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90120) days prior to the Stated Maturity Date and no later than end of the initial Term of this Lease or the prior Extension Period, as the case may be; provided, however, that if Tenant shall fail to give the notice within the aforesaid time limit, Tenant’s right to exercise its option shall nevertheless continue during said one hundred twenty (120) day period until thirty (30) days prior after Landlord shall have given Tenant notice of Landlord’s election to terminate such option (“Landlord’s Notice”), and Tenant may exercise such option at any time until the Stated Maturity Date, expiration of said thirty (30) day period. It is the intention of the parties to avoid forfeiture of Tenant’s rights to extend the Maturity Date Term under any of the options set forth in this Lease through inadvertent failure to August 11give the extension notice within the time limits prescribed. Accordingly, 2020 (if Tenant shall fail to give an extension notice to Landlord for any of the “First Extended Maturity Date”). In Extension Periods, and if Landlord shall fail to give Landlord’s Notice to Tenant, then until the event Borrowers shall have duly exercised the First Extension Option, Borrowers shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than expiration of thirty (30) days prior to the First Extended Maturity Datefollowing Landlord’s Notice, or until Tenant either exercises its option to extend the First Extended Maturity Date or notifies Landlord that it does not intend to August 11exercise said option to extend, 2021 (the “Second Extended Maturity Date”). Borrowers’ right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver the First Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable;
(b) Borrowers shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent shall have received a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid be extended automatically from month to month upon all the terms and conditions then in full;
(e) On effect, except that Monthly Base Rent shall be increased in accordance with Article 8, and in no event shall the Term extend beyond the last date of delivery the last Extension Period. Upon the failure of Tenant to exercise one or any of the First Extension Notice or the Second Extension options herein following Landlord’s Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any personand, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Propertyevent, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise upon expiration of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter last of such representation or warranty relates to a particular date specified thereinExtension Periods, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Tenant shall have no obligation further or additional right to renew or extend the applicable Maturity Date hereunderthis Lease.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent Lender no earlier later than ninety ten (9010) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Initial Stated Maturity Date, to extend the Maturity Date to August 11May 1, 2020 2022 (the “First Extended Maturity Date”, and such extended term, the “First Extended Term”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty ten (3010) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11May 1, 2021 2023 (the “Second Extended Maturity Date”, and such extended term, the “Second Extended Term”). Borrowers’ In the event Borrower shall have exercised each of the First Extension Option and the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender no later than ten (10) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to May 1, 2024 (the “Third Extended Maturity Date”, and such extended term, the “Third Extended Term”). The First Extension Notice shall be revocable at any time and for any reason by Borrower prior to the Initial Stated Maturity Date, the Second Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then First Extended Maturity Date and the Third Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then Second Extended Maturity Date, but Borrower shall pay Lender’s actual out-of-pocket expenses incurred in connection with such revocation (excluding breakage costs). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice or the Second Third Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Initial Stated Maturity Date and Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to Lender on the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements Agreements, (provided that, following an Applicable Interest Rate Conversion, Borrower shall instead deliver a replacement Substitute Interest Rate Protection Agreement subject to and in accordance with Section 2.2.4(e)) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal BalanceBalance as of the first day of the applicable Extended Term, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and 2.6, (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable), and (iii) execute and deliver a collateral assignment of the Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable), in the form of the Assignment of Interest Rate Cap Agreement;
(c) Agent Borrower shall have received cause a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only Counterparty Opinion to Permitted Encumbrances, (y) showing title be delivered with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable) and the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agentrelated Acknowledgment;
(d) All all amounts then due and payable (beyond the expiration of any applicable notice and cure periods) by Borrowers and any other Person Borrower pursuant to this Agreement or the other Loan Documents as of the Initial Stated Maturity Date, the First Extended Maturity Date or the First Second Extended Maturity Date, as applicable, and all out-of-pocket costs and expenses of Agent and LendersLender, including reasonable fees and expenses of Agent’s and each Lender’s outside counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice Spread (or the Second Extension NoticeBase Rate Spread or the Substitute Rate Spread, as applicable) shall be increased upon the commencement of the Third Extended Term pursuant to, Borrowers shall pay to Agent and in accordance with, the applicable Extension Feedefinition herein;
(f) There shall be no challengewith respect to the Second Extension Option and the Third Extension Option, action, suit, proceeding, the Debt Yield for the twelve (12) full calendar months ending on the last day of the month preceding the month in which the Second Extended Term or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any PropertyThird Extended Term, as determined by Agent acting in its reasonable discretion;applicable, is to commence shall equal or exceed eleven and one-half percent (11.5)%; and
(g) In connection with If the exercise of the First Extension Option:
Mortgage Loan has not theretofore been repaid in full, Owner shall have (i) timely exercised the Debt Yield as of extension option to extend the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateMortgage Loan, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under terms of the Mortgage Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues Documents to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which exercise such Guarantor is a party in a form reasonably acceptable to Agentextension option. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunderDate.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Hospitality Investors Trust, Inc.)
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Mezzanine Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Mezzanine Borrower shall have duly exercised the First Extension Option, Borrowers Mezzanine Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Mezzanine Borrower shall have exercised the Second Extension Option, Mezzanine Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Mezzanine Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Mezzanine Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Mezzanine Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or Extended Maturity Date and the Second Extension NoticeExtended Maturity Date, as applicable; provided, however, that if Mezzanine Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Mezzanine Borrower is diligently curing such Noticed Default within the allotted cure period under the Mezzanine Loan Documents, then such term (iiand the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no monetary Defaultevent shall such term be extended for more than 30 days unless all Defaults are cured within such period), material non-monetary Default or Event and upon such timely cure (and satisfaction of Default the other conditions set forth in this Section 5 for such extension), the term shall have occurred and be continuing on extended to the Stated Maturity Date and next to occur of the First Extended Maturity Date, as applicablethe Second Extended Maturity Date or the Third Extended Maturity Date;
(b) Borrowers ii. Mezzanine Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement extended the Interest Rate Cap Agreements Agreement (Fourth Mezzanine) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Agreement(sAgreement (Fourth Mezzanine) shall comply in all respects with the requirements set forth in the Mezzanine Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Mezzanine Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;
Agreement (cFourth Mezzanine) Agent shall have received a title continuation letter from and the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repayrelated Acknowledgments; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers iv. Mezzanine Borrower shall have timely exercised the right extension option to repay a portion extend the terms of the Outstanding Principal Balance as of Fourth Mezzanine Note A-1-a, the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirementFourth Mezzanine Note A-2-a, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true Fourth Mezzanine Note A-2-b and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSAterms of such Notes to exercise such extension options; Mortgage Borrower and each Senior Mezzanine Borrower shall have timely exercised their options to extend each Mortgage Note and Senior Mezzanine Note, and any actions expressly permitted under been entitled pursuant to the terms of the Mortgage Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date Documents and the First Extended Maturity Date, a reaffirmation of pursuant Senior Mezzanine Loan Documents to which Guarantor reaffirms all of its obligations under each Loan Document to which exercise such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunderextension options.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Mezzanine Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Mezzanine Borrower shall have duly exercised the First Extension Option, Borrowers Mezzanine Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Mezzanine Borrower shall have exercised the Second Extension Option, Mezzanine Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Mezzanine Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Mezzanine Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Mezzanine Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or Extended Maturity Date and the Second Extension NoticeExtended Maturity Date, as applicable; provided, however, that if Mezzanine Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Mezzanine Borrower is diligently curing such Noticed Default within the allotted cure period under the Mezzanine Loan Documents, then such term (iiand the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no monetary Defaultevent shall such term be extended for more than 30 days unless all Defaults are cured within such period), material non-monetary Default or Event and upon such timely cure (and satisfaction of Default the other conditions set forth in this Section 5 for such extension), the term shall have occurred and be continuing on extended to the Stated Maturity Date and next to occur of the First Extended Maturity Date, as applicablethe Second Extended Maturity Date or the Third Extended Maturity Date;
(b) Borrowers ii. Mezzanine Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement extended the Interest Rate Cap Agreements Agreement (Third Mezzanine) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Agreement(sAgreement (Third Mezzanine) shall comply in all respects with the requirements set forth in the Mezzanine Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Mezzanine Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;Agreement (Third Mezzanine) and the related Acknowledgments; and
(c) Agent iv. Mezzanine Borrower shall have received a title continuation letter from timely exercised the Title Company (x) confirming that extension option to extend the terms of the Third Mezzanine Note A-1-a, the Third Mezzanine Note A-1-b, and the Third Mezzanine Note A-2-b, and been entitled pursuant to the terms of such Notes to exercise such extension options; Mortgage Borrower, each Senior Mezzanine Borrower and each Junior Mezzanine Borrower shall have timely exercised their extension options to extend each Mortgage Note, Senior Mezzanine Note and Junior Mezzanine Note, and been entitled pursuant to the terms of the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Senior Mezzanine Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Junior Mezzanine Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the to exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunder.extension options;
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Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option to extend the term of the Loan for five (5) successive terms of one year beyond the Stated Maturity Date (each successive term, an “Extension Term”). Borrower shall have the option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11March 9, 2020 2021 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11March 9, 2021 2022 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to March 9, 2023 (the “Third Extended Maturity Date”). In the event Borrower shall have exercised the Third Extension Option, Borrower shall have the option (the “Fourth Extension Option”), by written notice (the “Fourth Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Third Extended Maturity Date, to extend the Third Extended Maturity Date to March 9, 2024 (the “Fourth Extended Maturity Date”). In the event Borrower shall have exercised the Fourth Extension Option, Borrower shall have the option (the “Fifth Extension Option”), by written notice (the “Fifth Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Fourth Extended Maturity Date, to extend the Fourth Extended Maturity Date to March 9, 2025 (the “Fifth Extended Maturity Date”). Borrower’s right to so extend the applicable Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver the First applicable Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent Lender not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day Business Day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and at the applicable Strike Price and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent Borrower shall have received deliver a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title Counterparty Opinion with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, related Acknowledgment and (z) showing no exceptions shall deliver to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to AgentLender an executed Collateral Assignment of Interest Rate Protection Agreement;
(d) All amounts due and payable by Borrowers Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or Date, the First Extended Maturity Date, the Second Extended Maturity Date, the Third Extended Maturity Date and the Fourth Extended Maturity Date, as applicable, and all reasonable, out-of-pocket costs and expenses of Agent and LendersLender, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;.
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation If Borrower is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunder.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Mezzanine Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Mezzanine Borrower shall have duly exercised the First Extension Option, Borrowers Mezzanine Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Mezzanine Borrower shall have exercised the Second Extension Option, Mezzanine Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Mezzanine Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Mezzanine Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Mezzanine Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or Extended Maturity Date and the Second Extension NoticeExtended Maturity Date, as applicable; provided, however, that if Mezzanine Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Mezzanine Borrower is diligently curing such Noticed Default within the allotted cure period under the Mezzanine Loan Documents, then such term (iiand the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no monetary Defaultevent shall such term be extended for more than 30 days unless all Defaults are cured within such period), material non-monetary Default or Event and upon such timely cure (and satisfaction of Default the other conditions set forth in this Section 5 for such extension), the term shall have occurred and be continuing on extended to the Stated Maturity Date and next to occur of the First Extended Maturity Date, as applicablethe Second Extended Maturity Date or the Third Extended Maturity Date;
(b) Borrowers ii. Mezzanine Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement extended the Interest Rate Cap Agreements Agreement (Third Mezzanine) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Agreement(sAgreement (Third Mezzanine) shall comply in all respects with the requirements set forth in the Mezzanine Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Mezzanine Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;Agreement (Third Mezzanine) and the related Acknowledgments; and
(c) Agent iv. Mezzanine Borrower shall have received a title continuation letter from timely exercised the Title Company (x) confirming that extension option to extend the terms of Third Mezzanine Note A-1-b, Third Mezzanine Note A-2-a, and Third Mezzanine Note A-2-b, and been entitled pursuant to the terms of such Notes to exercise such extension options; Mortgage Borrower, each Senior Mezzanine Borrower and each Junior Mezzanine Borrower shall have timely exercised their extension options to extend each Mortgage Note, each Senior Mezzanine Note and Junior Mezzanine Note, and been entitled pursuant to the terms of the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Senior Mezzanine Loan Documents as of and the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Junior Mezzanine Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the to exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunder.extension options;
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Extended Maturity Date and the First Second Extended Maturity Date, as applicable; provided, however, that if Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Borrower is diligently curing such Noticed Default within the allotted cure period under the Loan Documents, then such term (and the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no event shall such term be extended for more than 30 days unless all Defaults are cured within such period), and upon such timely cure (and satisfaction of the other conditions set forth in this Section 5 for such extension), the term shall be extended for the full one-year period contemplated above;
(b) Borrowers ii. Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, extended one or more Replacement Interest Rate Cap Protection Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Protection Agreement(s) shall comply in all respects with the requirements set forth in the Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;
(c) Agent shall have received a title continuation letter from Protection Agreements and the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repayrelated Acknowledgments; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers iv. Borrower shall have timely exercised the right extension option to repay a portion extend the terms of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirementNote ▇-▇, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy▇▇▇▇ ▇-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have ▇ and Note B-2 and been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property entitled pursuant to the ▇▇▇ Am PSAterms of such Notes to exercise such extension option; and each Mezzanine Borrower shall have timely exercised the extension options to extend each Mezzanine Note, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of been entitled pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all the terms of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation Mezzanine Loan Documents to extend the applicable Maturity Date hereunderexercise such extension options.
Appears in 1 contract
Sources: Note (Station Casinos Inc)
Extension Options. Subject to the provisions of this Section 2.7, Borrowers shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11, 2020 (the “First Extended Maturity Date”). In the event Borrowers shall have duly exercised the First Extension Option, Borrowers shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11, 2021 (the “Second Extended Maturity Date”). Borrowers’ right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):
(a) Provided: (i) no monetary Default, material non-monetary Default or Event Tenant is not then in default of Default shall have occurred and be continuing on the date Borrowers deliver the First Extension Notice or the Second Extension Notice, as applicable, and Lease; (ii) no more than 3 monetary Default, material non-monetary Default or Event Events of Default have occurred within any 60-consecutive month period after the date of this Amendment; (iii) the Lease is in full force and effect; (iv) Tenant is the originally named Tenant (or its transferee under a Permitted Transfer); and (v) Tenant (or its transferee under a Permitted Transfer) is then occupying 85% of the Premises for the conduct of Tenant’s business (or for the conduct of a transferee’s business under a Permitted Transfer), Tenant shall have occurred and be continuing on the Stated Maturity Date and right to extend the First Extended Maturity Date, as applicable;
Term (b“Extension Option”) Borrowers shall for up to 2 consecutive terms of 60 months each beyond the end of the Term (ieach an “Extension Term”) obtain and deliver by delivering Tenant’s written extension election notice to Agent not Landlord no later than one (1) Business Day the Extension Deadline, with time being of the essence. The “Extension Deadline” means the date that is 15 months prior to the first day expiration of the term then-current Term. The terms and conditions of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal Lease during each Extension Term shall remain unchanged except Tenant shall only be entitled to the Outstanding Principal Balance2 Extension Terms provided above, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective the annual Base Rent for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on Term shall be the Extension Rent (as defined below), the Expiration Date shall be the last day of the Interest Period in which Extension Term (or such earlier date of termination of the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent shall have received a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title Lease pursuant to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%terms hereof), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirementand, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained reflected in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a partyExtension Rent, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Landlord shall have no obligation to perform any tenant improvements to the Premises or provide any tenant improvement allowance to Tenant. Upon Tenant’s delivery of its written extension election notice, Tenant may not thereafter revoke its exercise of the Extension Option. Notwithstanding anything to the contrary in this Lease, Tenant shall have no right to extend the applicable Maturity Date hereunderTerm other than or beyond the 2, 60-month Extension Terms described in this paragraph. For avoidance of doubt, if Tenant timely exercises the first Extension Option only, the Term for the Premises shall expire on April 30, 2033, and if Tenant timely exercises both the first and second Extension Options, the Term for the Premises shall expire on April 30, 2038.
Appears in 1 contract
Sources: Lease (BigCommerce Holdings, Inc.)
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Mezzanine Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Mezzanine Borrower shall have duly exercised the First Extension Option, Borrowers Mezzanine Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Mezzanine Borrower shall have exercised the Second Extension Option, Mezzanine Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Mezzanine Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Mezzanine Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Mezzanine Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or Extended Maturity Date and the Second Extension NoticeExtended Maturity Date, as applicable; provided, however, that if Mezzanine Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Mezzanine Borrower is diligently curing such Noticed Default within the allotted cure period under the Mezzanine Loan Documents, then such term (iiand the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no monetary Defaultevent shall such term be extended for more than 30 days unless all Defaults are cured within such period), material non-monetary Default or Event and upon such timely cure (and satisfaction of Default the other conditions set forth in this Section 5 for such extension), the term shall have occurred and be continuing on extended to the Stated Maturity Date and next to occur of the First Extended Maturity Date, as applicablethe Second Extended Maturity Date or the Third Extended Maturity Date;
(b) Borrowers ii. Mezzanine Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement extended the Interest Rate Cap Agreements Agreement (Third Mezzanine) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Agreement(sAgreement (Third Mezzanine) shall comply in all respects with the requirements set forth in the Mezzanine Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Mezzanine Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;Agreement (Third Mezzanine) and the related Acknowledgments; and
(c) Agent iv. Mezzanine Borrower shall have received a title continuation letter from timely exercised the Title Company (x) confirming that extension option to extend the terms of Third Mezzanine Note A-1-a, Third Mezzanine Note A-2-a, and Third Mezzanine Note A-2-b, and been entitled pursuant to the terms of such Notes to exercise such extension options; Mortgage Borrower, Senior Mezzanine Borrower and each Junior Mezzanine Borrower shall have timely exercised their extension options to extend each Mortgage Note, Senior Mezzanine Note and Junior Mezzanine Note, and been entitled pursuant to the terms of the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Senior Mezzanine Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Junior Mezzanine Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the to exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunder.extension options;
Appears in 1 contract
Extension Options. Subject The Port hereby grants Tenant two (2) successive options to extend the Term of this Agreement (herein referred to individually as an “Extension Option”) for an additional period of ten (10) years for each option (herein referred to individually as “Extension Term”) except that no additional Extension Options shall apply following the second Extension Term and Rent during any such Extension Terms shall be determined and adjusted pursuant to Section 4.2. Except for the Allowed Variances and special provisions provided for in Section 25.3 to cure deficiencies arising out of the Allowed Variances (collectively referred to as “Special Provisions Variance”) the Extension Terms shall be on the same terms, covenants and conditions as the initial term of this Agreement. The Special Provisions Variance will apply only so long as the GSA Sublease (as hereinafter defined) remains in effect. Written notices of Tenant's exercise of the Extension Option for each Extension Term must be given to the provisions Port no less than six (6) months prior to the expiration of this Section 2.7, Borrowers shall have the onethen-time option current Term (the “First Extension OptionNotice Date”). Tenant shall have no right to exercise its right to extend the Term of this Agreement at such time as an Event of Default is outstanding beyond the applicable notice and cure period; provided, by irrevocable written notice (that, if the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than Port declares an Event of Default within thirty (30) days prior to the Stated Maturity Extension Notice Date, then the period of time within which said option may be exercised shall be extended as reasonably necessary for Tenant to extend cure the Maturity Date to August 11, 2020 (the “First Extended Maturity Date”)Event of Default. In the event Borrowers that Tenant fails to exercise an Extension Option within the time period stated above, Port will give written notice to the Leasehold Mortgagee and Leasehold Mortgagee shall have duly exercised the First Extension Option, Borrowers shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days prior from receipt of the notice to exercise the First Extended Maturity DateExtension Option in the place and stead of the Tenant. In the event that both Tenant and Leasehold Mortgagee fail to exercise an Extension Option in the time periods contemplated above, the Term of this Agreement shall expire upon the expiration of the then-current Term, and Tenant shall have no further right to extend the First Extended Maturity Date Term hereof. The Extension Options herein granted to August 11Tenant may not be separated from this Agreement in any manner, 2021 (the “Second Extended Maturity Date”). Borrowers’ right to so extend the Maturity Date shall be subject to the satisfaction by reservation or otherwise; however, Permitted Subleases may provide that notice of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):
a materially co- terminus (a) (i) no monetary Defaulte.g., material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver the First Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable;
(b) Borrowers shall (i) obtain and deliver to Agent not later more than one (1) Business Day prior to month shorter) corresponding extension option by the first day subtenant of the term entirety of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent shall have received a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation Premises is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade binding upon the exercise of the applicable Extension Option and on Initial Maturity Date both Tenant and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted Port under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunderthis Agreement.
Appears in 1 contract
Sources: Ground Lease Agreement
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Mezzanine Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Mezzanine Borrower shall have duly exercised the First Extension Option, Borrowers Mezzanine Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Mezzanine Borrower shall have exercised the Second Extension Option, Mezzanine Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Mezzanine Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Mezzanine Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Mezzanine Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or Extended Maturity Date and the Second Extension NoticeExtended Maturity Date, as applicable; provided, however, that if Mezzanine Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Mezzanine Borrower is diligently curing such Noticed Default within the allotted cure period under the Mezzanine Loan Documents, then such term (iiand the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no monetary Defaultevent shall such term be extended for more than 30 days unless all Defaults are cured within such period), material non-monetary Default or Event and upon such timely cure (and satisfaction of Default the other conditions set forth in this Section 5 for such extension), the term shall have occurred and be continuing on extended to the Stated Maturity Date and next to occur of the First Extended Maturity Date, as applicablethe Second Extended Maturity Date or the Third Extended Maturity Date;
(b) Borrowers ii. Mezzanine Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement extended the Interest Rate Cap Agreements Agreement (Second Mezzanine) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Agreement(sAgreement (Second Mezzanine) shall comply in all respects with the requirements set forth in the Mezzanine Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Mezzanine Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;Agreement (Second Mezzanine) and the related Acknowledgments; and
(c) Agent iv. Mezzanine Borrower shall have received a title continuation letter from timely exercised the Title Company (x) confirming that extension option to extend the terms of Second Mezzanine Note A-2 and been entitled pursuant to the terms of such Notes to exercise such extension options; and Mortgage Borrower, Senior Mezzanine Borrower and each Junior Mezzanine Borrower shall have timely exercised their respective extension options to extend each Mortgage Note, Senior Mezzanine Note and Junior Mezzanine Note, and been entitled pursuant to the terms of the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Senior Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) Junior Mezzanine Documents to the extent the subject matter of exercise such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunderextension options.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.7, Borrowers shall (a) Borrower will have the one-a one (1) time option to extend (the “First Extension Option”)) the Initial Maturity Date to the First Extended Maturity Date, by irrevocable if (and only if) each of the following conditions (collectively, the “First Extension Conditions”) have been satisfied within the applicable time periods:
(i) Borrower shall have delivered to Lender written notice (the “First Extension Notice”) delivered of Borrower’s decision to Agent extend the Initial Maturity Date pursuant to this Section 1.14(a) no earlier than ninety one hundred twenty (90120) days and no less than sixty (60) days prior to the Stated Initial Maturity Date Date. The First Extension Notice, upon its delivery to Lender, shall be irrevocable subject to and no later than thirty provided the First Extension Update Appraisal Requirement (30as hereinafter defined) days prior to is satisfied; and
(ii) At the Stated time Borrower gives the First Extension Notice and on the Initial Maturity Date, no Event of Default shall exist as certified by Borrower to extend Lender in a Certificate of No Event of Default to be executed by Borrower in favor of Lender dated and delivered to Lender as of the Initial Maturity Date to August 11Date; and
(iii) On or before the Initial Maturity Date, 2020 Borrower shall have paid or provided Lender sufficient funds for the payment of all Loan Expenses incurred by Lender in connection with the First Extension Option including, without limitation, the First Extension Option Fee and the cost of the First Extension Update Appraisal; and
(iv) Upon receipt of the First Extension Notice, Lender shall order a current appraisal of the Property at Borrower’s expense (the “First Extended Maturity DateExtension Update Appraisal”). It is a condition precedent to Borrower’s exercise of the First Extension Option that the then outstanding principal balance of the Loan on the date of the First Extension Notice shall not exceed Fifty Percent (50%) of the “as is” appraised value of the Property as reasonably determined by Lender (the “First Extension Update Appraisal Requirement”). In the event Borrowers shall have duly exercised that the First Extension OptionUpdate Appraisal Requirement is not satisfied, Borrowers shall have Borrower may pay a principal payment on the one-time option (Loan on or before the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Initial Maturity Date and no later than thirty (30) days prior to in such amount as determined by Lender so that the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11, 2021 (the “Second Extended Maturity Date”). Borrowers’ right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver the First Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable;
(b) Borrowers shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day of the term outstanding principal balance of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to of the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Initial Maturity Date shall not exceed Fifty Percent (prior to giving effect to the applicable Extension Option50%) and ending on the last day of the Interest Period in which “as is” appraised value of the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;Property as reasonably determined by Lender; and
(cv) Agent Concurrently with the First Extension Notice, Borrower shall have received delivered to Lender a title continuation letter from duly completed Borrower’s Covenant Compliance Certificate certified as true and correct by an appropriate officer of the Title Company (x) confirming Managing Member of Borrower, containing a computation and a confirmation that the Mortgage remains Property has a valid first-priority Lien against each PropertyDebt Service Coverage Ratio of not less than 1.45:1.00, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicabletogether with such supporting documentation necessary for Lender to determine such compliance. In the event that the foregoing Debt Service Coverage Ratio is not satisfied, Borrowers shall Borrower may pay to Agent a principal payment on the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court Loan on or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, Initial Maturity Date in such amount as determined by Agent acting in its reasonable discretion;
(g) In connection with Lender that is necessary for the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal Property to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy meet the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repayService Coverage Ratio; and
(iivi) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed Each representation and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties warranty made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof a Loan Party shall have been continue to be true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon on the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents)Date; and
(kvii) On or before the Initial Maturity Date, each Loan Party shall have delivered to Lender its most current financial statements certified by an appropriate officer of the Managing Member of Borrower for Borrower and by an appropriate officer of Guarantor continues to comply for Guarantor showing no Material Adverse Change and a certification from such Loan Party that since the date of such statements there has been no Material Adverse Change; and
(viii) On or before the Initial Maturity Date, each Loan Party shall have delivered such documents reasonably required by Lender in connection with the covenants contained in the Loan Document to which Guarantor is a partyFirst Extension Option, and Guarantor has provided to Agentincluding, on the Stated Maturity Date and the First Extended Maturity Datewithout limitation, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in the Guaranty (on a form reasonably acceptable to AgentLender). If Borrowers are unable to satisfy all In the event that any of the foregoing conditions within First Extension Conditions is not satisfied strictly in accordance with the applicable time frames for eachterms hereof or waived by Lender in writing, Agent the First Extension Option shall have no obligation to extend be null and void, and the applicable Loan shall mature on the Initial Maturity Date hereunderDate.
Appears in 1 contract
Sources: Loan Agreement (Inland Real Estate Income Trust, Inc.)
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Extended Maturity Date and the First Second Extended Maturity Date, as applicable; provided, however, that if Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Borrower is diligently curing such Noticed Default within the allotted cure period under the Loan Documents, then such term (and the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no event shall such term be extended for more than 30 days unless all Defaults are cured within such period), and upon such timely cure (and satisfaction of the other conditions set forth in this Section 5 for such extension), the term shall be extended for the full one-year period contemplated above;
(b) Borrowers ii. Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, extended one or more Replacement Interest Rate Cap Protection Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Protection Agreement(s) shall comply in all respects with the requirements set forth in the Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;
(c) Agent shall have received a title continuation letter from Protection Agreements and the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repayrelated Acknowledgments; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers iv. Borrower shall have timely exercised the right extension option to repay a portion extend the terms of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirementNote A-1, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have Note B-1 and Note B-2 and been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property entitled pursuant to the ▇▇▇ Am PSAterms of such Notes to exercise such extension options; and each Mezzanine Borrower shall have timely exercised the extension option to extend each Mezzanine Note, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of been entitled pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all the terms of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation Mezzanine Loan Documents to extend the applicable Maturity Date hereunderexercise such extension options.
Appears in 1 contract
Sources: Note (Station Casinos Inc)
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the Initial Stated Maturity Date, to extend the Maturity Date to August 11May 1, 2020 2017 (the “First Extended Maturity Date”, and such extended term, the “First Extended Term”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11May 1, 2021 2018 (the “Second Extended Maturity Date”, and such extended term, the “Second Extended Term”). Borrowers’ In the event Borrower shall have exercised each of the First Extension Option and the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to May 1, 2019 (the “Third Extended Maturity Date”, and such extended term, the “Third Extended Term”). The First Extension Notice shall be revocable at any time and for any reason by Borrower prior to the Initial Stated Maturity Date, the Second Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then First Extended Maturity Date and the Third Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then Second Extended Maturity Date, but Borrower shall pay Lender’s actual out-of-pocket expenses incurred in connection with such revocation (excluding breakage costs). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice or the Second Third Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Initial Stated Maturity Date and Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to Lender on the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal BalanceBalance as of the first day of the applicable Extended Term, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and 2.6, (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement, and (iii) execute and deliver a collateral assignment of the Replacement Interest Rate Cap Agreement, in the form of the Assignment of Interest Rate Cap Agreement. Lender (or its Affiliates) shall have the right to match the best economic terms available to Borrower (as determined by Borrower), and provide the Replacement Interest Rate Cap Agreements, subject to the requirements hereunder;
(c) Agent Borrower shall have received cause a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only Counterparty Opinion to Permitted Encumbrances, (y) showing title be delivered with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agentrelated Acknowledgment;
(d) All all amounts then due and payable (beyond the expiration of any applicable notice and cure periods) by Borrowers and any other Person Borrower pursuant to this Agreement or the other Loan Documents as of the Initial Stated Maturity Date, the First Extended Maturity Date or the First Second Extended Maturity Date, as applicable, and all out-of-pocket costs and expenses of Agent and LendersLender, including reasonable fees and expenses of Agent’s and each Lender’s outside counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On with respect to the date exercise of delivery of the First Extension Notice or the Second Extension NoticeOption, as applicable, Borrowers Borrower shall pay to Agent Lender the applicable Extension FeeFee on the First Extended Maturity Date, and with respect to the exercise of the Third Extension Option, Borrower shall pay to Lender the Extension Fee on the Second Extended Maturity Date;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as (based on unaudited financial statements from the trailing twelve-month period ending the last day of February of the Stated Maturity Date applicable calendar year) shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or no less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second applicable Minimum Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion first day of the Outstanding Principal Balance as Second Extended Term or the first day of the First Third Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirementTerm, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateapplicable, and (ii) to after the extent such representation or warranty is no longer true as a result Approved Mezzanine Closing Date, the Aggregate Debt Yield (based on unaudited financial statements from the trailing twelve-month period ending the last day of February of the passage of time, applicable calendar year) shall be no less than the ordinary course of conduct of Borrowers, the sale applicable Minimum Aggregate Debt Yield as of the Pan Am Property pursuant to first day of the ▇▇▇ Am PSASecond Extended Term or the first day of the Third Extended Term, and any actions expressly permitted under the Loan Documents, provided that Borrowersas applicable, in each case, have complied with their covenants contained in after application of any prepayments made by Borrower and Owner and the Loan DocumentsApproved Mezzanine Borrower as permitted by Section 2.4.2(a) or Section 2.4.2(b); and
(kg) Guarantor continues Each of Owner and Approved Mezzanine Borrower shall have (i) timely exercised the extension option to comply with extend the covenants contained in the applicable Mortgage Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of Approved Mezzanine Loan and (ii) been entitled pursuant to which Guarantor reaffirms all the terms of its obligations under each the Mortgage Loan Document Documents and Approved Mezzanine Loan Documents, as applicable, to which exercise such Guarantor is a party in a form reasonably acceptable extension option and (iii) paid any extension fee required pursuant to Agentthe terms of the Mortgage Loan and the Approved Mezzanine Loan, as applicable. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunderDate.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (W2007 Grace Acquisition I Inc)
Extension Options. Subject (a) Provided that Lessee shall not have theretofore exercised the Fourth Extension Option, Lessor hereby grants Lessee the right to extend the provisions of Term for one (1) year from the Scheduled Expiry Date in accordance with the terms and conditions set forth in this Section 2.7, Borrowers shall have the one-time option 2.3 (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11, 2020 (the “First Extended Maturity Date”). In the event Borrowers shall have duly exercised Provided that Lessee exercises the First Extension Option in accordance herewith, and further provided that Lessee shall not have theretofore exercised the Fourth Extension Option, Borrowers Lessee shall have the one-time option right to further extend the Term an additional one (1) year from the then applicable Scheduled Expiry Date in accordance with the terms and conditions set forth in this Section 2.3 (the “Second Extension Option”). Provided that Lessee exercises the Second Extension Option, by irrevocable written notice and further provided that Lessee shall not have theretofore exercised the Fourth Extension Option, Lessee shall have the right to further extend the Term for an additional one (1) year from the then applicable Scheduled Expiry Date in accordance with the terms and conditions set forth in this Section 2.3 (the “Second Third Extension NoticeOption”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the First Extended Maturity Date, ). Lessee shall have an additional right to extend the First Extended Maturity Term for one three (3) month period from the then applicable Scheduled Expiry Date to August 11, 2021 in accordance with the terms and conditions set forth in this Section 2.3 (the “Fourth Extension Option,” and together with the First Extension Option, Second Extended Maturity DateExtension Option and Third Extension Option, the “Extension Options”). Borrowers’ right .
(b) In order to so extend the Maturity Date shall be subject to the satisfaction of exercise any Extension Option, the following conditions precedent must be satisfied:
(i) [FOR ODD NUMBERED DELIVERY POSITIONS – Not later than twelve (12) months prior to each extension hereunder (and each such condition then applicable Scheduled Expiry Date as extended, Lessor shall have received a written notice from Lessee stating that it is exercising the Extension Option, which notice once given shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely irrevocable.] [FOR EVEN NUMBERED DELIVERY POSITIONS—With respect to the First Extension Option or the Option, Second Extension Option and Third Extension Option):, not later than twelve (12) months prior to then applicable Scheduled Expiry Date and with respect to the Fourth Extension Option, not later than fifteen (15) months prior to the Scheduled Expiry Date as extended, Lessor shall have received a written notice from Lessee stating that it is exercising the Extension Option, which notice once given shall be irrevocable.]
(aii) Promptly after such notice, Lessee shall deliver to Lessor a Lease Supplement, board resolutions, legal opinions and other documents related to such extension, as Lessor may reasonably request.
(iiii) no monetary Default, material non-monetary Significant Default or nor any Event of Default shall have occurred and be continuing on the date Borrowers deliver the First Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event that Lessor receives notice of Default shall have occurred and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable;
(b) Borrowers shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day Lessee’s exercise of the term of the Loan as extended, one Extension Option or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Scheduled Expiry Date (prior to as determined without giving effect to Lessee’s exercise of the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;).
(c) Agent shall have received a title continuation letter If Lessee elects to exercise an Extension Option then, with effect from the Title Company Scheduled Expiry Date, the Lease shall be automatically amended as follows:
(xi) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title with respect to the applicable Property vested First Extension Option, the words “one hundred eighty three (183) months after the Rent Commencement Date” in the applicable Borrowerdefinition of “Scheduled Expiry Date” shall be deemed replaced by the words “one hundred ninety five (195) months after the Rent Commencement Date” (provided, and however, if Lessee exercises the Fourth Extension Option concurrently with the First Extension Option, the words “one hundred eighty three (z183) showing no exceptions to title other than those previously approved months after the Rent Commencement Date” in the definition of “Scheduled Expiry Date” shall be deemed replaced by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agentwords “one hundred ninety eight (198) months after the Rent Commencement Date”);
(dii) All amounts due and payable with respect to the Second Extension Option, the words “one hundred ninety five (195) months after the Rent Commencement Date” in the definition of “Scheduled Expiry Date” shall be deemed replaced by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of words “two hundred seven (207) months after the Stated Maturity Date or Rent Commencement Date” (provided, however, if Lessee exercises the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection Fourth Extension Option concurrently with the Loan and/or Second Extension Option, the applicable extension words “one hundred ninety five (195) months after the Rent Commencement Date” in the definition of “Scheduled Expiry Date” shall be deemed replaced by the Term shall have been paid in fullwords “two hundred ten (210) months after the Rent Commencement Date”);
(eiii) On with respect to the date Third Extension Option, the words “two hundred seven (207) months after the Rent Commencement Date” in the definition of delivery “Scheduled Expiry Date” shall be deemed replaced by the words “two hundred nineteen (219) months after the Rent Commencement Date” (provided, however, if Lessee exercises the Fourth Extension Option concurrently with the Third Extension Option, the words “two hundred seven (207) months after the Rent Commencement Date” in the definition of “Scheduled Expiry Date” shall be deemed replaced by the First Extension Notice or words “two hundred twenty two (222) months after the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;Rent Commencement Date”); and
(fiv) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against the event Lessee does not exercise any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
or the Third Extension Option, but elects to exercise the Fourth Extension Option, the words “one hundred eighty three (i183) months after the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated Rent Commencement Date” in the Pan Am PSA shall have been completed and in connection therewith, an amount definition of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) “Scheduled Expiry Date” shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default replaced by the Pan Am Purchaser;
words “one hundred eighty six (j186) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith months after the date thereof shall have been true Rent Commencement Date”. For the avoidance of doubt, Lessor and correct in Lessee acknowledge and agree that the Fourth Extension Option may only be exercised once during the Term. Lessor and Lessee further acknowledge and agree that all material respects on the date on which made and shall also be true and correct as if remade upon the exercise other provisions of the applicable Extension Option Lease shall remain in full force and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereundereffect.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent Lender no earlier later than ninety ten (9010) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Initial Stated Maturity Date, to extend the Maturity Date to August 11May 1, 2020 (the “First Extended Maturity Date”, and such extended term, the “First Extended Term”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty ten (3010) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11May 1, 2021 (the “Second Extended Maturity Date”, and such extended term, the “Second Extended Term”). Borrowers’ In the event Borrower shall have exercised each of the First Extension Option and the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender no later than ten (10) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to May 1, 2022 (the “Third Extended Maturity Date”, and such extended term, the “Third Extended Term”). The First Extension Notice shall be revocable at any time and for any reason by Borrower prior to the Initial Stated Maturity Date, the Second Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then First Extended Maturity Date and the Third Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then Second Extended Maturity Date, but Borrower shall pay Lender’s actual out-of-pocket expenses incurred in connection with such revocation (excluding breakage costs). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice or the Second Third Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Initial Stated Maturity Date and Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to Lender on the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal BalanceBalance as of the first day of the applicable Extended Term, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and 2.6, (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement, and (iii) execute and deliver a collateral assignment of the Replacement Interest Rate Cap Agreement, in the form of the Assignment of Interest Rate Cap Agreement;
(c) Agent Borrower shall have received cause a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only Counterparty Opinion to Permitted Encumbrances, (y) showing title be delivered with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agentrelated Acknowledgment;
(d) All all amounts then due and payable (beyond the expiration of any applicable notice and cure periods) by Borrowers and any other Person Borrower pursuant to this Agreement or the other Loan Documents as of the Initial Stated Maturity Date, the First Extended Maturity Date or the First Second Extended Maturity Date, as applicable, and all out-of-pocket costs and expenses of Agent and LendersLender, including reasonable fees and expenses of Agent’s and each Lender’s outside counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On with respect to the date of delivery exercise of the First Third Extension Notice Option, the Spread or the Second Extension NoticePrime Rate Spread, as applicable, Borrowers shall pay to Agent be increased by 0.25% commencing on the applicable Extension Feeday immediately following the Second Extended Maturity Date;
(f) There if the Class A Member shall be no challengenot have acquired Class B Member’s Interest (as defined in that certain Second Amendment and Restated Limited Liability Company Agreement of HIT Portfolio I Holdco, actionLLC, suitdated as of the date hereof (the “Holdco LLC Agreement”)) pursuant to the buy/sell set forth in the Holdco LLC Agreement, proceeding, or investigation is pending or threatened the Class A Member shall have been redeemed in writing against any part full in accordance with the terms of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;Holdco LLC Agreement; and
(g) In connection with If the exercise of the First Extension Option:
Mortgage Loan has not theretofore been repaid in full, Owner shall have (i) timely exercised the Debt Yield as of extension option to extend the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateMortgage Loan, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under terms of the Mortgage Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues Documents to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which exercise such Guarantor is a party in a form reasonably acceptable to Agentextension option. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunderDate.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Hospitality Investors Trust, Inc.)
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Mezzanine Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Mezzanine Borrower shall have duly exercised the First Extension Option, Borrowers Mezzanine Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Mezzanine Borrower shall have exercised the Second Extension Option, Mezzanine Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Mezzanine Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Mezzanine Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Mezzanine Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or Extended Maturity Date and the Second Extension NoticeExtended Maturity Date, as applicable; provided, however, that if Mezzanine Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Mezzanine Borrower is diligently curing such Noticed Default within the allotted cure period under the Mezzanine Loan Documents, then such term (iiand the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no monetary Defaultevent shall such term be extended for more than 30 days unless all Defaults are cured within such period), material non-monetary Default or Event and upon such timely cure (and satisfaction of Default the other conditions set forth in this Section 5 for such extension), the term shall have occurred and be continuing on extended to the Stated Maturity Date and next to occur of the First Extended Maturity Date, as applicablethe Second Extended Maturity Date or the Third Extended Maturity Date;
(b) Borrowers ii. Mezzanine Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement extended the Interest Rate Cap Agreements Agreement (Second Mezzanine) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Agreement(sAgreement (Second Mezzanine) shall comply in all respects with the requirements set forth in the Mezzanine Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Mezzanine Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;Agreement (Second Mezzanine) and the related Acknowledgments; and
(c) Agent iv. Mezzanine Borrower shall have received a title continuation letter from timely exercised the Title Company (x) confirming that extension option to extend the terms of Second Mezzanine Note A-1 and been entitled pursuant to the terms of such Notes to exercise such extension options; and Mortgage Borrower, Senior Mezzanine Borrower and each Junior Mezzanine Borrower shall have timely exercised their respective extension options to extend each Mortgage Note, Senior Mezzanine Note and Junior Mezzanine Note, and been entitled pursuant to the terms of the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Senior Loan Documents as of and the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Junior Mezzanine Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the to exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunderextension options.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option to extend the term of the Loan for five (5) successive terms of one year beyond the Stated Maturity Date (each successive term, an “Extension Term”). Borrower shall have the option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11July 9, 2020 2021 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11July 9, 2021 2022 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to July 9, 2023 (the “Third Extended Maturity Date”). In the event Borrower shall have exercised the Third Extension Option, Borrower shall have the option (the “Fourth Extension Option”), by written notice (the “Fourth Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Third Extended Maturity Date, to extend the Third Extended Maturity Date to July 9, 2024 (the “Fourth Extended Maturity Date”). In the event Borrower shall have exercised the Fourth Extension Option, Borrower shall have the option (the “Fifth Extension Option”), by written notice (the “Fifth Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Fourth Extended Maturity Date, to extend the Fourth Extended Maturity Date to July 9, 2025 (the “Fifth Extended Maturity Date”). Borrower’s right to so extend the applicable Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver the First applicable Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent Lender not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day Business Day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and at the applicable Strike Price and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent Borrower shall have received deliver a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title Counterparty Opinion with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, related Acknowledgment and (z) showing no exceptions shall deliver to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to AgentLender an executed Collateral Assignment of Interest Rate Protection Agreement;
(d) All amounts due and payable by Borrowers Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or Date, the First Extended Maturity Date, the Second Extended Maturity Date, the Third Extended Maturity Date and the Fourth Extended Maturity Date, as applicable, and all reasonable, out-of-pocket costs and expenses of Agent and LendersLender, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;.
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation If Borrower is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunder.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option to extend the term of the Loan for five (5) successive terms of one year beyond the Stated Maturity Date (each successive term, an “Extension Term”). Borrower shall have the option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11January 9, 2020 2022 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11January 9, 2021 2023 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to January 9, 2024 (the “Third Extended Maturity Date”). In the event Borrower shall have exercised the Third Extension Option, Borrower shall have the option (the “Fourth Extension Option”), by written notice (the “Fourth Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Third Extended Maturity Date, to extend the Third Extended Maturity Date to January 9, 2025 (the “Fourth Extended Maturity Date”). In the event Borrower shall have exercised the Fourth Extension Option, Borrower shall have the option (the “Fifth Extension Option”), by written notice (the “Fifth Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Fourth Extended Maturity Date, to extend the Fourth Extended Maturity Date to January 9, 2026 (the “Fifth Extended Maturity Date”). Borrower’s right to so extend the applicable Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver the First applicable Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent Lender not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day Business Day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and at the applicable Strike Price and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent Borrower shall have received deliver a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title Counterparty Opinion with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, related Acknowledgment and (z) showing no exceptions shall deliver to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to AgentLender an executed Collateral Assignment of Interest Rate Protection Agreement;
(d) All amounts due and payable by Borrowers Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or Date, the First Extended Maturity Date, the Second Extended Maturity Date, the Third Extended Maturity Date and the Fourth Extended Maturity Date, as applicable, and all reasonable, out-of-pocket costs and expenses of Agent and LendersLender, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;.
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation If Borrower is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunder.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Mezzanine Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Mezzanine Borrower shall have duly exercised the First Extension Option, Borrowers Mezzanine Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Mezzanine Borrower shall have exercised the Second Extension Option, Mezzanine Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Mezzanine Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Mezzanine Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Mezzanine Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or Extended Maturity Date and the Second Extension NoticeExtended Maturity Date, as applicable; provided, however, that if Mezzanine Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Mezzanine Borrower is diligently curing such Noticed Default within the allotted cure period under the Mezzanine Loan Documents, then such term (iiand the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no monetary Defaultevent shall such term be extended for more than 30 days unless all Defaults are cured within such period), material non-monetary Default or Event and upon such timely cure (and satisfaction of Default the other conditions set forth in this Section 5 for such extension), the term shall have occurred and be continuing on extended to the Stated Maturity Date and next to occur of the First Extended Maturity Date, as applicablethe Second Extended Maturity Date or the Third Extended Maturity Date;
(b) Borrowers ii. Mezzanine Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement extended the Interest Rate Cap Agreements Agreement (Third Mezzanine) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Agreement(sAgreement (Third Mezzanine) shall comply in all respects with the requirements set forth in the Mezzanine Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Mezzanine Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;Agreement (Third Mezzanine) and the related Acknowledgments; and
(c) Agent iv. Mezzanine Borrower shall have received a title continuation letter from timely exercised the Title Company (x) confirming that extension option to extend the terms of the Third Mezzanine Note A-1-a, the Third Mezzanine Note A-1-b, and the Third Mezzanine Note A-2-a, and been entitled pursuant to the terms of such Notes to exercise such extension options; Mortgage Borrower, each Senior Mezzanine Borrower and each Junior Mezzanine Borrower shall have timely exercised their extension options to extend each Mortgage Note, Senior Mezzanine Note and Junior Mezzanine Note, and been entitled pursuant to the terms of the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Senior Mezzanine Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Junior Mezzanine Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the to exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunder.extension options;
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Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option to extend the term of the Loan for five (5) successive terms of one year beyond the Stated Maturity Date (each successive term, an “Extension Term”). Borrower shall have the option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11December 9, 2020 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11December 9, 2021 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to December 9, 2022 (the “Third Extended Maturity Date”). In the event Borrower shall have exercised the Third Extension Option, Borrower shall have the option (the “Fourth Extension Option”), by written notice (the “Fourth Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Third Extended Maturity Date, to extend the Third Extended Maturity Date to December 9, 2023 (the “Fourth Extended Maturity Date”). In the event Borrower shall have exercised the Fourth Extension Option, Borrower shall have the option (the “Fifth Extension Option”), by written notice (the “Fifth Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Fourth Extended Maturity Date, to extend the Fourth Extended Maturity Date to December 9, 2024 (the “Fifth Extended Maturity Date”). Borrower’s right to so extend the applicable Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver the First applicable Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent Lender not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day Business Day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and at the applicable Strike Price and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent Borrower shall have received deliver a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title Counterparty Opinion with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, related Acknowledgment and (z) showing no exceptions shall deliver to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to AgentLender an executed Collateral Assignment of Interest Rate Protection Agreement;
(d) All amounts due and payable by Borrowers Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or Date, the First Extended Maturity Date, the Second Extended Maturity Date, the Third Extended Maturity Date and the Fourth Extended Maturity Date, as applicable, and all reasonable, out-of-pocket costs and expenses of Agent and LendersLender, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;.
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation If Borrower is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunder.
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Extension Options. Subject to the provisions of this Section 2.75, Borrowers Mezzanine Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Mezzanine Borrower shall have duly exercised the First Extension Option, Borrowers Mezzanine Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Mezzanine Borrower shall have exercised the Second Extension Option, Mezzanine Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Mezzanine Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Mezzanine Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Mezzanine Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or Extended Maturity Date and the Second Extension NoticeExtended Maturity Date, as applicable; provided, however, that if Mezzanine Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Mezzanine Borrower is diligently curing such Noticed Default within the allotted cure period under the Mezzanine Loan Documents, then such term (iiand the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no monetary Defaultevent shall such term be extended for more than 30 days unless all Defaults are cured within such period), material non-monetary Default or Event and upon such timely cure (and satisfaction of Default the other conditions set forth in this Section 5 for such extension), the term shall have occurred and be continuing on extended to the Stated Maturity Date and next to occur of the First Extended Maturity Date, as applicablethe Second Extended Maturity Date or the Third Extended Maturity Date;
(b) Borrowers ii. Mezzanine Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement extended the Interest Rate Cap Agreements Agreement (First Mezzanine) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Agreement(sAgreement (First Mezzanine) shall comply in all respects with the requirements set forth in the Mezzanine Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Mezzanine Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;
Agreement (cFirst Mezzanine) Agent shall have received a title continuation letter from and the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repayrelated Acknowledgments; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers iv. Mezzanine Borrower shall have timely exercised the right extension option to repay a portion extend the terms of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have Mezzanine Note A-1 and been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property entitled pursuant to the ▇▇▇ Am PSAterms of such Note to exercise such extension option; and Mortgage Borrower and each Junior Mezzanine Borrower shall have timely exercised their respective extension options to extend each Mortgage Note and Junior Mezzanine Note, and any actions expressly permitted under been entitled pursuant to the terms of the Mortgage Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date Documents and the First Extended Maturity Date, a reaffirmation of pursuant Junior Mezzanine Loan Documents to which Guarantor reaffirms all of its obligations under each Loan Document to which exercise such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunderextension options.
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Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent Lender no earlier later than ninety ten (9010) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Initial Stated Maturity Date, to extend the Maturity Date to August 11November 7, 2020 2022 (the “First Extended Maturity Date”, and such extended term, the “First Extended Term”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty ten (3010) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 7, 2021 2023 (the “Second Extended Maturity Date”, and such extended term, the “Second Extended Term”). Borrowers’ In the event Borrower shall have exercised each of the First Extension Option and the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender no later than ten (10) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 7, 2024 (the “Third Extended Maturity Date”, and such extended term, the “Third Extended Term”). The First Extension Notice shall be revocable at any time and for any reason by Borrower prior to the Initial Stated Maturity Date, the Second Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then First Extended Maturity Date and the Third Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then Second Extended Maturity Date, but Borrower shall pay Lender’s actual out-of-pocket expenses incurred in connection with such revocation (excluding breakage costs). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice or the Second Third Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Initial Stated Maturity Date and Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to Lender on the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements (provided that, following an Applicable Interest Rate Conversion, Borrower shall instead deliver a replacement Substitute Interest Rate Protection Agreement subject to and in accordance with Section 2.2.4(e)) and provided further that if a Replacement Interest Rate Protection Agreement is not then commercially available due to the unavailability or uncertainty in the continuing availability of LIBOR as a reference rate, then Borrower may deliver to Lender a mutually agreeable alternative to a Replacement Interest Rate Protection Agreement that would afford Lender substantially equivalent protection from increases in the Applicable Interest Rate, as reasonably determined by Lender) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal BalanceBalance as of the first day of the applicable Extended Term, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and 2.6, (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable), and (iii) execute and deliver a collateral assignment of the Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable), in the form of the Assignment of Interest Rate Cap Agreement;
(c) Agent Borrower shall have received cause a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only Counterparty Opinion to Permitted Encumbrances, (y) showing title be delivered with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable) and the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agentrelated Acknowledgment;
(d) All all amounts then due and payable (beyond the expiration of any applicable notice and cure periods) by Borrowers and any other Person Borrower pursuant to this Agreement or the other Loan Documents as of the Initial Stated Maturity Date, the First Extended Maturity Date or the First Second Extended Maturity Date, as applicable, and all out-of-pocket costs and expenses of Agent and LendersLender, including reasonable fees and expenses of Agent’s and each Lender’s outside counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;intentionally omitted; and
(f) There If the Mortgage Loan and Mezzanine B Loan have not theretofore been repaid in full, Owner and Mezzanine B Borrower, respectively, shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
have (i) timely exercised the Debt Yield extension option to extend the Mortgage Loan or Mezzanine B Loan, as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateapplicable, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under terms of the Mortgage Loan Documents or Mezzanine B Loan Documents, provided that Borrowersas applicable, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which exercise such Guarantor is a party in a form reasonably acceptable to Agentextension option. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunderDate.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Hospitality Investors Trust, Inc.)
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days and no earlier than sixty (60) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11November 9, 2020 2017 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days and no earlier than sixty (60) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 9, 2021 2018 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by irrevocable written notice (the “Third Extension Notice”) delivered to Agent no later than thirty (30) days and no earlier than sixty (60) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 9, 2019 (the “Third Extended Maturity Date”). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default of which notice has been given to Borrower or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice or the Second Third Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default of which notice has been given to Borrower or Event of Default shall have occurred and be continuing on the Stated Maturity Date and Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and occurs, (B) have a strike price equal to the Extension Strike Price, and (C) otherwise on the same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent Borrower shall have received deliver a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title Counterparty Opinion with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agentrelated Acknowledgment;
(d) All all amounts due and payable by Borrowers Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date, the First Extended Maturity Date or the First Second Extended Maturity Date, as applicable, and all out-of-pocket costs and expenses of Agent and Lenders, including reasonable fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or on the Second Extension NoticeExtended Maturity Date and the Third Extended Maturity Date, as applicable, Borrowers Borrower shall pay to Agent the applicable Extension Fee;
(f) There the Properties shall have achieved, on the date Borrower delivers the First Extension Notice, the Second Extension Notice or the Third Extension Notice, as applicable, and on the Stated Maturity Date, the First Extended Maturity Date and the Second Extended Maturity Date, respectively, a Debt Yield of no less than 5.3%; provided, however, if the Properties do not satisfy the foregoing Debt Yield requirements provided in this Section 2.7.1(f), Borrower (and Mortgage Borrower) shall be no challengepermitted to prepay, actionon a pro rata basis, suit, proceeding, or investigation is pending or threatened a portion of the Loan (subject to and in writing against any part accordance with Section 2.4.2) and Mortgage Borrower shall make a pro rata payment of any Property or any Borrower by any person, the Mortgage Loan (subject to and in any court or before any Governmental Authority which is reasonably likely to materially adversely affect accordance with the value provisions of any Property, as determined by Agent acting the Mortgage Loan Agreement) in its reasonable discretionan amount that would be sufficient such that the applicable Debt Yield test set forth above shall be satisfied;
(g) In connection with the exercise of the First Extension Option:
Mortgage Borrower shall have (i) timely exercised the Debt Yield as of extension option to extend the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateMortgage Loan, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSA, terms of the Mortgage Loan Documents to exercise such extension option and (iii) paid any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of extension fee required pursuant to which Guarantor reaffirms all the terms of its obligations under each the Mortgage Loan Document to which such Guarantor is a party in a form reasonably acceptable to AgentAgreement. If Borrowers Borrower are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend or further extend (as applicable) the applicable Stated Maturity Date hereunder.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Mezzanine Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Mezzanine Borrower shall have duly exercised the First Extension Option, Borrowers Mezzanine Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Mezzanine Borrower shall have exercised the Second Extension Option, Mezzanine Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Mezzanine Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Mezzanine Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Mezzanine Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or Extended Maturity Date and the Second Extension NoticeExtended Maturity Date, as applicable; provided, however, that if Mezzanine Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Mezzanine Borrower is diligently curing such Noticed Default within the allotted cure period under the Mezzanine Loan Documents, then such term (iiand the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no monetary Defaultevent shall such term be extended for more than 30 days unless all Defaults are cured within such period), material non-monetary Default or Event and upon such timely cure (and satisfaction of Default the other conditions set forth in this Section 5 for such extension), the term shall have occurred and be continuing on extended to the Stated Maturity Date and next to occur of the First Extended Maturity Date, as applicablethe Second Extended Maturity Date or the Third Extended Maturity Date;
(b) Borrowers ii. Mezzanine Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement extended the Interest Rate Cap Agreements Agreement (First Mezzanine) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Agreement(sAgreement (First Mezzanine) shall comply in all respects with the requirements set forth in the Mezzanine Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Mezzanine Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;
Agreement (cFirst Mezzanine) Agent shall have received a title continuation letter from and the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repayrelated Acknowledgments; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers iv. Mezzanine Borrower shall have timely exercised the right extension option to repay a portion extend the terms of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have Mezzanine Note A-2 and been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property entitled pursuant to the ▇▇▇ Am PSAterms of such Notes to exercise such extension options; and Mortgage Borrower and each Junior Mezzanine Borrower shall have timely exercised their respective extension options to extend each Mortgage Note and Junior Mezzanine Note, and any actions expressly permitted under been entitled pursuant to the terms of the Mortgage Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date Documents and the First Extended Maturity Date, a reaffirmation of pursuant Junior Mezzanine Loan Documents to which Guarantor reaffirms all of its obligations under each Loan Document to which exercise such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunderextension options.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent Lender no earlier later than ninety ten (9010) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Initial Stated Maturity Date, to extend the Maturity Date to August 11November 7, 2020 2022 (the “First Extended Maturity Date”, and such extended term, the “First Extended Term”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty ten (3010) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 7, 2021 2023 (the “Second Extended Maturity Date”, and such extended term, the “Second Extended Term”). Borrowers’ In the event Borrower shall have exercised each of the First Extension Option and the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender no later than ten (10) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 7, 2024 (the “Third Extended Maturity Date”, and such extended term, the “Third Extended Term”). The First Extension Notice shall be revocable at any time and for any reason by Borrower prior to the Initial Stated Maturity Date, the Second Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then First Extended Maturity Date and the Third Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then Second Extended Maturity Date, but Borrower shall pay Lender’s actual out-of-pocket expenses incurred in connection with such revocation (excluding breakage costs). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice or the Second Third Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Initial Stated Maturity Date and Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to Lender on the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements (provided that, following an Applicable Interest Rate Conversion, Borrower shall instead deliver a replacement Substitute Interest Rate Protection Agreement subject to and in accordance with Section 2.2.4(e)) and provided further that if a Replacement Interest Rate Protection Agreement is not then commercially available due to the unavailability or uncertainty in the continuing availability of LIBOR as a reference rate, then Borrower may deliver to Lender a mutually agreeable alternative to a Replacement Interest Rate Protection Agreement that would afford Lender substantially equivalent protection from increases in the Applicable Interest Rate, as reasonably determined by Lender) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal BalanceBalance as of the first day of the applicable Extended Term, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and 2.6, (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable), and (iii) execute and deliver a collateral assignment of the Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable), in the form of the Assignment of Interest Rate Cap Agreement;
(c) Agent Borrower shall have received cause a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only Counterparty Opinion to Permitted Encumbrances, (y) showing title be delivered with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable) and the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agentrelated Acknowledgment;
(d) All all amounts then due and payable (beyond the expiration of any applicable notice and cure periods) by Borrowers and any other Person Borrower pursuant to this Agreement or the other Loan Documents as of the Initial Stated Maturity Date, the First Extended Maturity Date or the First Second Extended Maturity Date, as applicable, and all out-of-pocket costs and expenses of Agent and LendersLender, including reasonable fees and expenses of Agent’s and each Lender’s outside counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;intentionally omitted; and
(f) There If the Mortgage Loan and Mezzanine A Loan have not theretofore been repaid in full, Owner and Mezzanine A Borrower, respectively, shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
have (i) timely exercised the Debt Yield extension option to extend the Mortgage Loan or Mezzanine A Loan, as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateapplicable, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under terms of the Mortgage Loan Documents or Mezzanine A Loan Documents, provided that Borrowersas applicable, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which exercise such Guarantor is a party in a form reasonably acceptable to Agentextension option. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunderDate.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Hospitality Investors Trust, Inc.)
Extension Options. Subject Seller shall have three (3) options to extend the Facility Expiration Date from the Initial Facility Expiration Date to the provisions anniversary of this Section 2.7such date in the succeeding year (or if such day is not a Business Day, Borrowers shall have the one-time option immediately succeeding Business Day) (such date, the “First Extension OptionExtended Facility Expiration Date”), from the First Extended Facility Expiration Date to the anniversary of such date in the succeeding year (or if such day is not a Business Day, the immediately succeeding Business Day) (such date, the “Second Extended Facility Expiration Date”) and from the Second Extended Facility Expiration Date to the anniversary of such date in the succeeding year (or if such day is not a Business Day, the immediately succeeding Business Day) (such date, the “Third Extended Facility Expiration Date”) (each such extension period, an “Extension Term”); provided, that the exercise of each such extension option by irrevocable Seller shall be subject to the following conditions precedent: (i) Seller shall have delivered to Buyer a written notice to extend the then effective Facility Expiration Date not less than thirty (the “First Extension Notice”30) delivered to Agent no earlier and not more than ninety (90) calendar days prior to the Stated Maturity then effective Facility Expiration Date and no later than thirty (30) days which notice may be revoked by Seller at any time prior to the Stated Maturity then effective Facility Expiration Date, to extend the Maturity Date to August 11, 2020 (the “First Extended Maturity Date”). In the event Borrowers shall have duly exercised the First Extension Option, Borrowers shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (ii) on the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11, 2021 (the “Second Extended Maturity Date”). Borrowers’ right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise first day of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):
Term, (a) (ix) no monetary Defaultor non- monetary Default has occurred and is continuing; provided, material that notwithstanding the foregoing, if such non-monetary Default or Event is susceptible of Default shall have occurred cure and be continuing on the date Borrowers deliver the First Extension Notice or the Second Extension Notice, as applicable, and (ii) no Seller is working diligently to cure such non- monetary Default, material then Seller shall be permitted to extend the Facility Expiration Date so long as such non-monetary Default or is cured by the end of any cure period granted under Article 13(a) of this Agreement, (y) no Event of Default shall have has occurred and be is continuing on the Stated Maturity Date and the First Extended Maturity Date(z) no unsatisfied Margin Deficit then exists for which a Margin Call Notice has been delivered, as applicable;
(biii) Borrowers shall (i) obtain and deliver to Agent by not later than one (1) Business Day prior to the first day of each Extension Term, Seller shall have paid to Buyer the term of the Loan as extendedExtension Fee then due and payable, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s(iv) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs Minimum Portfolio Purchase Price Debt Yield is satisfied and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent shall have received a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(iv) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers Seller in the Loan Documents or otherwise made by Borrowers Article 9 (other than those contained in connection therewith after the date thereof Article 9(s) relating to Purchased Assets subject to other Transactions) shall have been be true and correct in all material respects on the date on which made first day of each Extension Term with the same force and shall also be true and correct effect as if remade upon the exercise of the applicable Extension Option made on and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified datedate (or, and (ii) to the extent if any such representation or warranty is no longer true expressly stated to have been made as of a result specific date, as of such specific date); provided, that, notwithstanding the passage of timeforegoing, with respect to this Article 3(h)(v) only, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property representation and warranty made pursuant to the ▇▇▇ Am PSA, and Article 9(o) shall be made excluding any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documentsreference to “(or prospects); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunder”.
Appears in 1 contract
Sources: Master Repurchase Agreement (Cim Real Estate Finance Trust, Inc.)
Extension Options. Subject (A) Provided that at the respective times of exercise ----------------- of each of the herein described options to the provisions extend (i) there exists no Event of Default beyond applicable notice and cure periods provided in Section 15.1 and (ii) this Section 2.7Lease is still in full force and effect, Borrowers Tenant shall have the one-time right to extend the Term hereof upon all of the same terms, conditions, covenants and agreements herein contained (except for the Annual Fixed Rent which shall be adjusted during the extension periods as hereinafter set forth) for three (3) successive periods of five (5) years as hereinafter set forth. Each of said three (3) extension periods is sometimes herein referred to as an "Extended Term".
(B) (i) If Tenant desires to exercise the then available option (to extend the “First Extension Option”)Term, by irrevocable written then Tenant shall give notice (the “First Extension Notice”) delivered to Agent no Landlord, not earlier than ninety ------------------------------------ eighteen(18) months nor later than fourteen (9014) days months prior to the Stated Maturity Date and no later than ------------------------------------------------ expiration of the Term of this Lease (as it may previously have been ------------------------------------ extended hereunder) of Tenant's request for Landlord's quotation to Tenant of a proposed annual rent for the applicable Extended Term. Within thirty (30) days prior to after receipt by Landlord of Tenant's request as aforesaid, Landlord shall notify Tenant of Landlord's quotation of the Stated Maturity Date, to extend proposed Annual Fixed Rent for the Maturity Date to August 11, 2020 (applicable Extended Term. If at the “First Extended Maturity Date”). In the event Borrowers shall have duly exercised the First Extension Option, Borrowers shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than expiration of thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11, 2021 (the “Second Extended Maturity Date”). Borrowers’ right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on after the date Borrowers deliver when Tenant receives Landlord's quotation of the First Extension Notice proposed Annual Fixed Rent for the applicable Extended Term or the Second Extension Notice, as applicable, and (ii) no monetary Defaultafter the date when Landlord is required to notify Tenant of such quotation with none being given by Landlord to Tenant (herein called the "Negotiation Period"), material non-monetary Default or Event Landlord and Tenant have not reached agreement on a determination of Default shall have occurred an annual rental for the applicable Extended Term and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable;
(b) Borrowers shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day of executed a written instrument extending the term of this Lease pursuant to such agreement, then Tenant shall have the Loan right, for thirty (30) days following the expiration of the Negotiation Period, to make a request by written notice to Landlord for a broker determination (the "Broker Determination") of the Prevailing Market Rent (as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, defined in a notional amount equal to Exhibit I) for the Outstanding Principal Balanceapplicable Extended Term, which Replacement Interest Rate Cap Agreement(s) Broker Determination shall be (A) effective for made in the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms manner set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent shall have received a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunder.Exhibit I.
Appears in 1 contract
Sources: Sublease (On Technology Corp)
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent Lender no earlier later than ninety ten (9010) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Initial Stated Maturity Date, to extend the Maturity Date to August 11May 1, 2020 (the “First Extended Maturity Date”, and such extended term, the “First Extended Term”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty ten (3010) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11May 1, 2021 (the “Second Extended Maturity Date”, and such extended term, the “Second Extended Term”). Borrowers’ In the event Borrower shall have exercised each of the First Extension Option and the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender no later than ten (10) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to May 1, 2022 (the “Third Extended Maturity Date”, and such extended term, the “Third Extended Term”). The First Extension Notice shall be revocable at any time and for any reason by Borrower prior to the Initial Stated Maturity Date, the Second Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then First Extended Maturity Date and the Third Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then Second Extended Maturity Date, but Borrower shall pay Lender’s actual out-of-pocket expenses incurred in connection with such revocation (excluding breakage costs). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice or the Second Third Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Initial Stated Maturity Date and Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to Lender on the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal BalanceBalance as of the first day of the applicable Extended Term, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and 2.6, (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement, and (iii) execute and deliver a collateral assignment of the Replacement Interest Rate Cap Agreement, in the form of the Assignment of Interest Rate Cap Agreement;
(c) Agent Borrower shall have received cause a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only Counterparty Opinion to Permitted Encumbrances, (y) showing title be delivered with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agentrelated Acknowledgment;
(d) All all amounts then due and payable (beyond the expiration of any applicable notice and cure periods) by Borrowers and any other Person Borrower pursuant to this Agreement or the other Loan Documents as of the Initial Stated Maturity Date, the First Extended Maturity Date or the First Second Extended Maturity Date, as applicable, and all out-of-pocket costs and expenses of Agent and LendersLender, including reasonable fees and expenses of Agent’s and each Lender’s outside counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On with respect to the date of delivery exercise of the First Third Extension Notice Option, each Component Spread or the Second Extension NoticeComponent Prime Rate Spread, as applicable, Borrowers shall pay to Agent be increased by 0.25% commencing on the applicable Extension Feeday immediately following the Second Extended Maturity Date;
(f) There if the Class A Member shall be no challengenot have acquired the Class B Member’s Interest (as defined in that certain Second Amendment and Restated Limited Liability Company Agreement of HIT Portfolio I Holdco, actionLLC, suitdated as of the date hereof (the “Holdco LLC Agreement”)) pursuant to the buy/sell set forth in the Holdco LLC Agreement, proceeding, or investigation is pending or threatened the Class A Member shall have been redeemed in writing against any part full in accordance with the terms of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;Holdco LLC Agreement; and
(g) In connection with the exercise of the First Extension Option:
Each Mezzanine Borrower whose Mezzanine Loan has not theretofore been repaid in full shall have (i) timely exercised the Debt Yield as of the Stated Maturity Date shall be equal extension option to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of extend the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateMezzanine Loan, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under terms of the applicable Mezzanine Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues Documents to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which exercise such Guarantor is a party in a form reasonably acceptable to Agentextension option. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunderDate.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11November 9, 2020 2019 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 9, 2021 2020 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by irrevocable written notice (the “Third Extension Notice”) delivered to Agent no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 9, 2021 (the “Third Extended Maturity Date”). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice or the Second Third Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date, the First Extended Maturity Date and the First Second Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and occurs, (B) have a strike price equal to the Extension Strike Price; provided, Borrower shall be permitted to prepay, on a pro rata basis, a portion of the Loan (subject to and in accordance with Section 2.4.2) in an amount that maximizes the Extension Strike Price, and (C) otherwise on the same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent Borrower shall have received deliver a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title Counterparty Opinion with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agentrelated Acknowledgment;
(d) All all amounts due and payable by Borrowers Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date, the First Extended Maturity Date or the First Second Extended Maturity Date, as applicable, and all out-of-pocket costs and expenses of Agent and Lenders, including reasonable fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of on the First Extension Notice or Extended Maturity Date and the Second Extension NoticeExtended Maturity Date, as applicable, Borrowers Borrower shall pay to Agent the applicable Extension Fee;
(f) There the Properties shall have achieved, on the date Borrower delivers the First Extension Notice, the Second Extension Notice or the Third Extension Notice, as applicable, and on the Stated Maturity Date, the First Extended Maturity Date and the Second Extended Maturity Date, respectively, a Debt Yield of no less than 6.50%; provided, however, if the Properties do not satisfy the foregoing Debt Yield requirements provided in this Section 2.7.1(f), Borrower shall be no challenge, action, suit, proceeding, or investigation is pending or threatened permitted to prepay a portion of the Loan (subject to and in writing against any part of any Property or any Borrower by any person, accordance with Section 2.4.2) in any court or before any Governmental Authority which is reasonably likely to materially adversely affect an amount that would be sufficient such that the value of any Property, as determined by Agent acting in its reasonable discretionDebt Yield test set forth above shall be satisfied;
(g) In connection with after giving effect to any partial prepayments of the exercise Loan under clause (f) of this Section 2.7.1, the Properties shall have achieved, on the date Borrower delivers the First Extension Option:
(i) Notice, the Debt Yield Second Extension Notice or the Third Extension Notice, as of applicable, and on the Stated Maturity Date shall be equal to or greater than 10.0%Date, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date and the Second Extended Maturity Date, respectively, a Combined Debt Yield of no less than 5.30%; provided, however, if the Properties do not satisfy the foregoing Combined Debt Yield requirements provided in this Section 2.7.1(g), Current Mezzanine Borrower shall be equal permitted to or greater than 10.5%, provided that Borrowers shall have the right to repay prepay a portion of the Outstanding Principal Balance as Current Mezzanine Loan (subject to and in accordance with Section 2.4.2 of the First Extended Maturity Date Current Mezzanine Loan Agreement) in an amount that would be sufficient to satisfy such that the foregoing Combined Debt Yield requirement, which repayment amount test set forth above shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repaysatisfied; and
(iih) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers Current Mezzanine Borrower shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) timely exercised the closing contemplated in extension option to extend the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateCurrent Mezzanine Loan, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSA, terms of the Current Mezzanine Loan Documents to exercise such extension option and (iii) paid any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of extension fee required pursuant to which Guarantor reaffirms all the terms of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agentthe Current Mezzanine Note. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend or further extend (as applicable) the applicable Stated Maturity Date hereunder.
Appears in 1 contract
Sources: Loan Agreement (Clipper Realty Inc.)
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Extended Maturity Date and the First Second Extended Maturity Date, as applicable; provided, however, that if Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Borrower is diligently curing such Noticed Default within the allotted cure period under the Loan Documents, then such term (and the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no event shall such term be extended for more than 30 days unless all Defaults are cured within such period), and upon such timely cure (and satisfaction of the other conditions set forth in this Section 5 for such extension), the term shall be extended for the full one-year period contemplated above;
(b) Borrowers ii. Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, extended one or more Replacement Interest Rate Cap Protection Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Protection Agreement(s) shall comply in all respects with the requirements set forth in the Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;
(c) Agent shall have received a title continuation letter from Protection Agreements and the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repayrelated Acknowledgments; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers iv. Borrower shall have timely exercised the right extension option to repay a portion extend the terms of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirementNote A-2, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateNote B-1, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property Note B-2 and been entitled pursuant to the ▇▇▇ Am PSAterms of such Notes to exercise such extension options; and each Mezzanine Borrower shall have timely exercised the extension option to extend each Mezzanine Note, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of been entitled pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all the terms of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation Mezzanine Loan Documents to extend the applicable Maturity Date hereunderexercise such extension options.
Appears in 1 contract
Sources: Note (Station Casinos Inc)
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11September 9, 2020 2017 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11September 9, 2021 2018 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to September 9, 2019 (the “Third Extended Maturity Date”). Borrower’s right to so extend the applicable Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver the First applicable Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent Lender not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day Business Day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and at the applicable Strike Price and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent shall have received a title continuation letter from the Title Company (x) confirming that Debt Yield as of the Mortgage remains a valid first-priority Lien against each Property, subject only most recent Calculation Date is at least equal to Permitted Encumbrances, (y) showing title to or greater than the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to AgentClosing Date Debt Yield;
(d) Borrower shall deliver a Counterparty Opinion with respect to the Replacement Interest Rate Cap Agreement and the related Acknowledgment and shall deliver to Lender an executed Collateral Assignment of Interest Rate Protection Agreement;
(e) All amounts due and payable by Borrowers Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or Date, the First Extended Maturity Date, and the Second Extended Maturity Date, as applicable, and all reasonable, out-of-pocket costs and expenses of Agent and LendersLender, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunder.
Appears in 1 contract
Sources: Loan Agreement (American Residential Properties, Inc.)
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent Lender no earlier later than ninety ten (9010) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Initial Stated Maturity Date, to extend the Maturity Date to August 11November 7, 2020 2022 (the “First Extended Maturity Date”, and such extended term, the “First Extended Term”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty ten (3010) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 7, 2021 2023 (the “Second Extended Maturity Date”, and such extended term, the “Second Extended Term”). Borrowers’ In the event Borrower shall have exercised each of the First Extension Option and the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender no later than ten (10) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 7, 2024 (the “Third Extended Maturity Date”, and such extended term, the “Third Extended Term”). The First Extension Notice shall be revocable at any time and for any reason by Borrower prior to the Initial Stated Maturity Date, the Second Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then First Extended Maturity Date and the Third Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then Second Extended Maturity Date, but Borrower shall pay Lender’s actual out-of-pocket expenses incurred in connection with such revocation (excluding breakage costs). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice or the Second Third Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Initial Stated Maturity Date and Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to Lender on the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements (provided that, following an Applicable Interest Rate Conversion, Borrower shall instead deliver a replacement Substitute Interest Rate Protection Agreement subject to and in accordance with Section 2.2.4(e) and provided further that, if a Replacement Interest Rate Protection Agreement is not then commercially available due to the unavailability or uncertainty in the continuing availability of LIBOR as a reference rate, Borrower and Lender shall work together to find a mutually agreeable alternative to a Substitute Interest Rate Protection Agreement that would afford Lender substantially equivalent protection from increases in the Applicable Interest Rate, as reasonably determined by Lender) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal BalanceBalance as of the first day of the applicable Extended Term, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and 2.6, (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable), and (iii) execute and deliver a collateral assignment of the Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable), in the form of the Assignment of Interest Rate Cap Agreement;
(c) Agent Borrower shall have received cause a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only Counterparty Opinion to Permitted Encumbrances, (y) showing title be delivered with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable) and the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agentrelated Acknowledgment;
(d) All all amounts then due and payable (beyond the expiration of any applicable notice and cure periods) by Borrowers and any other Person Borrower pursuant to this Agreement or the other Loan Documents as of the Initial Stated Maturity Date, the First Extended Maturity Date or the First Second Extended Maturity Date, as applicable, and all out-of-pocket costs and expenses of Agent and LendersLender, including reasonable fees and expenses of Agent’s and each Lender’s outside counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;intentionally omitted; and
(f) There Each Mezzanine Borrower whose Mezzanine Loan has not theretofore been repaid in full shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
have (i) timely exercised the Debt Yield as of the Stated Maturity Date shall be equal extension option to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of extend the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateMezzanine Loan, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under terms of the applicable Mezzanine Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues Documents to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which exercise such Guarantor is a party in a form reasonably acceptable to Agentextension option. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunderDate.
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Extension Options. Subject to the provisions of this Section 2.75, Borrowers Mezzanine Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Mezzanine Borrower shall have duly exercised the First Extension Option, Borrowers Mezzanine Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Mezzanine Borrower shall have exercised the Second Extension Option, Mezzanine Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Mezzanine Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Mezzanine Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Mezzanine Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or Extended Maturity Date and the Second Extension NoticeExtended Maturity Date, as applicable; provided, however, that if Mezzanine Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Mezzanine Borrower is diligently curing such Noticed Default within the allotted cure period under the Mezzanine Loan Documents, then such term (iiand the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no monetary Defaultevent shall such term be extended for more than 30 days unless all Defaults are cured within such period), material non-monetary Default or Event and upon such timely cure (and satisfaction of Default the other conditions set forth in this Section 5 for such extension), the term shall have occurred and be continuing on extended to the Stated Maturity Date and next to occur of the First Extended Maturity Date, as applicablethe Second Extended Maturity Date or the Third Extended Maturity Date;
(b) Borrowers ii. Mezzanine Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement extended the Interest Rate Cap Agreements Agreement (Fourth Mezzanine) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Agreement(sAgreement (Fourth Mezzanine) shall comply in all respects with the requirements set forth in the Mezzanine Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Mezzanine Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;
Agreement (cFourth Mezzanine) Agent shall have received a title continuation letter from and the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repayrelated Acknowledgments; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers iv. Mezzanine Borrower shall have timely exercised the right extension option to repay a portion extend the terms of the Outstanding Principal Balance as of Fourth Mezzanine Note A-1-b, the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirementFourth Mezzanine Note A-2-a, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true Fourth Mezzanine Note A-2-b and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSAterms of such Notes to exercise such extension options; Mortgage Borrower and each Senior Mezzanine Borrower shall have timely exercised their options to extend each Mortgage Note and Senior Mezzanine Note, and any actions expressly permitted under been entitled pursuant to the terms of the Mortgage Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date Documents and the First Extended Maturity Date, a reaffirmation of pursuant Senior Mezzanine Loan Documents to which Guarantor reaffirms all of its obligations under each Loan Document to which exercise such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunderextension options.
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Extension Options. Subject 41.01 Provided that, at the time of delivery of the applicable Extension Notice (as hereinafter defined) and on the Expiration Date and/or the First Extended Term Expiration Date, as applicable, this lease shall be in full force and effect and without default (after the expiration of any applicable notice and cure period) of any of the obligations required to the provisions of this Section 2.7be observed or performed by Tenant hereunder, Borrowers Tenant shall have the one-time option (hereinafter referred to as the “Extension Option”) to extend the term of this lease for two successive terms of five (5) years each (hereinafter each referred to as the “Extended Term”) the first Extended Term to commence on the day (hereinafter referred to as the “First Extension OptionExtended Term Commencement Date”) next succeeding the Expiration Date and to expire on the fifth (5th) anniversary of the Expiration Date (hereinafter referred to as the “Fist Extended Term Expiration Date”) and the second Extended Term to commence on the day (hereinafter referred to as the “Second Extended Term Commencement Date”) next succeeding the First Extended Term Expiration Date and to expire on the fifth (5th) anniversary of the First Extended Term Expiration Date (hereinafter referred to as the “Second Extended Term Expiration Date”), . Tenant shall exercise the respective Extension Option by irrevocable sending a written notice thereof (herein referred to as the “First Extension Notice”) delivered to Agent Landlord on or before the day that shall be no earlier than ninety (90) days 30 months prior to the Stated Maturity Expiration Date and no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11, 2020 (the “or First Extended Maturity Date”). In the event Borrowers shall have duly exercised the First Extension Option, Borrowers shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11, 2021 (the “Second Extended Maturity Date”). Borrowers’ right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver the First Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable;
(b) Borrowers shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent shall have received a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Term Expiration Date, as applicable, and no later than 12 months preceding the Expiration Date or First Extended Term Expiration Date, as applicable. If Tenant shall send the Extension Notice within the time and in the manner hereinbefore provided, this lease shall be deemed extended for the applicable Extended Term upon the terms, covenants and conditions hereinafter contained. If Tenant shall fail to send the Extension Option, this lease shall cease and terminate on the Expiration Date or First Extended Term Expiration Date, as applicable, and Tenant shall have no further option to extend the term of this lease.
41.02 The Extended Term, if any, shall be on and subject to, all costs of the terms, covenants and expenses conditions provided in this lease for the initial term hereof, except that the annual fixed rent payable by Tenant for the Demised Premises for the first year of Agent the applicable Extended Term shall be the greater of (i) 95% of the fair market rental value of the Demised Premises as of the date being six (6) months immediately preceding the applicable Extended Term and Lenders(ii) 103% of the fixed rent payable in the final year of the initial term or first Extended Term, including as applicable. Commencing six months prior to the Expiration Date or First Extended Term Expiration Date, as applicable, Landlord and Tenant shall use their best efforts to agree upon the fair market rental value of the Demised Premises. In the event Landlord and Tenant cannot reach agreement within thirty (30) days, Landlord and Tenant shall confer and appoint a reputable, qualified, licensed real estate broker having an office in the county in which the Building is located and is familiar with the rentals then being charged in comparable buildings (the “Independent Broker”). Upon the failure of Landlord and Tenant to agree upon the designation of the Independent Broker, then upon ten (10) days’ notice, either party may apply to the offices of the American Arbitration Association located in the city in which the Building is located to appoint the Independent Broker by expedited arbitration. Concurrently with such appointment, Landlord and Tenant shall each submit a letter to the Independent Broker, with a copy to the other, setting forth their respective estimates of the fair market rental value of the Demised Premises, taking into consideration the duration of the applicable Extended Term and all other terms and conditions of this Lease which are applicable to the Extended Term (respectively, “Landlord’s Letter” and “Tenant’s Letter”). The Independent Broker shall use his best efforts to determine the fair market rental value of the Demised Premises during the applicable Extended Term and shall choose the fair market rental value set forth in either Landlord’s Letter or Tenant’s Letter to be the fair market value for the purposes of determining the fixed rent during the applicable Extended Term. The fees and expenses of Agent’s the Independent Broker and each Lender’s counsel, all costs incurred in connection with the Loan and/or appointment of the Independent Broker shall be shared equally by Landlord and Tenant. Once the fixed rent for the first year of the applicable extension Extended Term has been established, the fixed rent shall be increased on each of the 1st, 2nd, 3rd, and 4th anniversaries of the commencement of the applicable Extended Term shall have been paid in full;to be 103% of the fixed rent for the prior year.
(ea) On the date of delivery If, in accordance with and subject to, all of the terms, covenants and conditions contained in this Article 41, the term of this lease is extended for the applicable Extended Term, then the “Expiration Date”, as such term is used in this lease, shall mean the “First Extension Notice or the Extended Term Expiration Date” and Second Extension NoticeExtended Term Expiration Date, as applicable, Borrowers and the “term of this lease” (and comparable words), shall pay to Agent mean the initial term of this lease, as extended by the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repayExtended Term.
(hb) In connection with the exercise Time is of the Second Extension Option only:
(i) the Debt Yield essence as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of Tenant with respect to the Pan Am Property shall have been repaid; provided that the condition notice and other provisions set forth in this clause (i) Article. Tenant’s notice to Landlord shall be deemed satisfied even if the closing contemplated irrevocable, and, in the Pan Am PSA has not been completed event of such notice, Tenant shall be liable for the fixed rent, during the applicable Extended Term. Notwithstanding anything to the contrary contained herein, if and only if such forward purchase was not completed due solely by a default by at any time this lease is terminated prior to the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise expiration of the applicable Extension Option and on Initial Maturity Date and initial term hereof, then, without the First Extended Maturity Date (except (i) to the extent the subject matter requirement of such representation or warranty relates to a particular date specified thereinany notice, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation Tenant’s option to extend the applicable Maturity Date hereunderterm as set forth herein is likewise terminated.
Appears in 1 contract
Sources: Lease (American Realty Capital New York Recovery Reit Inc)
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11March 9, 2020 2017 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11March 9, 2021 2018 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by irrevocable written notice (the “Third Extension Notice”) delivered to Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to March 9, 2019 (the “Third Extended Maturity Date”). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice or the Second Third Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date, the First Extended Maturity Date and the First Second Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent Lender not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements (with confirmations of such transactions delivered in the ordinary course of business of such Counterparty; provided that Borrower shall use commercially reasonable efforts to cause such delivery to be made within five (5) Business Days after the Stated Maturity Date, First Extended Maturity Date or Second Extended Maturity Date, as applicable) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and occurs, (B) have a strike rate equal to the Extension Strike Price, and (C) be otherwise on same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent Borrower shall have received deliver a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title Counterparty Opinion with respect to the applicable Property vested Replacement Interest Rate Cap Agreement and the related Acknowledgment in the applicable Borrowerordinary course of business of such Counterparty; provided that Borrower shall use commercially reasonable efforts to cause such delivery to be made within five (5) Business Days after the Stated Maturity Date, and (z) showing no exceptions to title other than those previously approved by Agent First Extended Maturity Date or permitted under the Loan DocumentsSecond Extended Maturity Date, in a form reasonably satisfactory to Agentas applicable;
(d) All amounts due and payable by Borrowers Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date, the First Extended Maturity Date or the First Second Extended Maturity Date, as applicable, and all outstanding costs and expenses of Agent and LendersLender, including reasonable fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;; and
(e) On if a New Mezzanine Loan is then outstanding, such borrower under the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers New Mezzanine Loan shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
have (i) timely exercised the Debt Yield as of extension option to extend the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateNew Mezzanine Loan, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSA, terms of the New Mezzanine Loan Documents to exercise such extension option and (iii) paid any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of extension fee required pursuant to which Guarantor reaffirms all the terms of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agentthe mezzanine note. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Stated Maturity Date hereunder.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Mezzanine Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Mezzanine Borrower shall have duly exercised the First Extension Option, Borrowers Mezzanine Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Mezzanine Borrower shall have exercised the Second Extension Option, Mezzanine Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Mezzanine Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Mezzanine Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Mezzanine Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or Extended Maturity Date and the Second Extension NoticeExtended Maturity Date, as applicable; provided, however, that if Mezzanine Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Mezzanine Borrower is diligently curing such Noticed Default within the allotted cure period under the Mezzanine Loan Documents, then such term (iiand the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no monetary Defaultevent shall such term be extended for more than 30 days unless all Defaults are cured within such period), material non-monetary Default or Event and upon such timely cure (and satisfaction of Default the other conditions set forth in this Section 5 for such extension), the term shall have occurred and be continuing on extended to the Stated Maturity Date and next to occur of the First Extended Maturity Date, as applicablethe Second Extended Maturity Date or the Third Extended Maturity Date;
(b) Borrowers ii. Mezzanine Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement extended the Interest Rate Cap Agreements Agreement (Fourth Mezzanine) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Agreement(sAgreement (Fourth Mezzanine) shall comply in all respects with the requirements set forth in the Mezzanine Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Mezzanine Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;
Agreement (cFourth Mezzanine) Agent shall have received a title continuation letter from and the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repayrelated Acknowledgments; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers iv. Mezzanine Borrower shall have timely exercised the right extension option to repay a portion extend the terms of the Outstanding Principal Balance as of Fourth Mezzanine Note A-1-a, the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirementFourth Mezzanine Note A-1-b, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to Fourth Mezzanine Note A-2-a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSAterms of such Notes to exercise such extension options; Mortgage Borrower and each Senior Mezzanine Borrower shall have timely exercised their options to extend each Mortgage Note and Senior Mezzanine Note, and any actions expressly permitted under been entitled pursuant to the terms of the Mortgage Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date Documents and the First Extended Maturity Date, a reaffirmation of pursuant Senior Mezzanine Loan Documents to which Guarantor reaffirms all of its obligations under each Loan Document to which exercise such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunderextension options.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Mezzanine Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Mezzanine Borrower shall have duly exercised the First Extension Option, Borrowers Mezzanine Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Mezzanine Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Mezzanine Borrower shall have exercised the Second Extension Option, Mezzanine Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Mezzanine Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Mezzanine Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Mezzanine Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or Extended Maturity Date and the Second Extension NoticeExtended Maturity Date, as applicable; provided, however, that if Mezzanine Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Mezzanine Borrower is diligently curing such Noticed Default within the allotted cure period under the Mezzanine Loan Documents, then such term (iiand the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no monetary Defaultevent shall such term be extended for more than 30 days unless all Defaults are cured within such period), material non-monetary Default or Event and upon such timely cure (and satisfaction of Default the other conditions set forth in this Section 5 for such extension), the term shall have occurred and be continuing on extended to the Stated Maturity Date and next to occur of the First Extended Maturity Date, as applicablethe Second Extended Maturity Date or the Third Extended Maturity Date;
(b) Borrowers ii. Mezzanine Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement extended the Interest Rate Cap Agreements Agreement (Fourth Mezzanine) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Agreement(sAgreement (Fourth Mezzanine) shall comply in all respects with the requirements set forth in the Mezzanine Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Mezzanine Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;
Agreement (cFourth Mezzanine) Agent shall have received a title continuation letter from and the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repayrelated Acknowledgments; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers iv. Mezzanine Borrower shall have timely exercised the right extension option to repay a portion extend the terms of the Outstanding Principal Balance as of Fourth Mezzanine Note A-1-a, the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirementFourth Mezzanine Note A-1-b, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true Fourth Mezzanine Note A-2-b and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSAterms of such Notes to exercise such extension options; Mortgage Borrower and each Senior Mezzanine Borrower shall have timely exercised their options to extend each Mortgage Note and Senior Mezzanine Note, and any actions expressly permitted under been entitled pursuant to the terms of the Mortgage Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date Documents and the First Extended Maturity Date, a reaffirmation of pursuant Senior Mezzanine Loan Documents to which Guarantor reaffirms all of its obligations under each Loan Document to which exercise such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation to extend the applicable Maturity Date hereunderextension options.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent Lender no earlier later than ninety ten (9010) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Initial Stated Maturity Date, to extend the Maturity Date to August 11May 1, 2020 2022 (the “First Extended Maturity Date”, and such extended term, the “First Extended Term”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty ten (3010) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11May 1, 2021 2023 (the “Second Extended Maturity Date”, and such extended term, the “Second Extended Term”). Borrowers’ In the event Borrower shall have exercised each of the First Extension Option and the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender no later than ten (10) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to May 1, 2024 (the “Third Extended Maturity Date”, and such extended term, the “Third Extended Term”). The First Extension Notice shall be revocable at any time and for any reason by Borrower prior to the Initial Stated Maturity Date, the Second Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then First Extended Maturity Date and the Third Extension Notice shall be revocable at any time and for any reason by Borrower prior to the then Second Extended Maturity Date, but Borrower shall pay Lender’s actual out-of-pocket expenses incurred in connection with such revocation (excluding breakage costs). Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice or the Second Third Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Initial Stated Maturity Date and Date, the First Extended Maturity Date or the Second Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to Lender on the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements (provided that, following an Applicable Interest Rate Conversion, Borrower shall instead deliver a replacement Substitute Interest Rate Protection Agreement subject to and in accordance with Section 2.2.4(e)) from an Approved Counterparty, in a notional amount equal to the Outstanding Principal BalanceBalance as of the first day of the applicable Extended Term, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and 2.6, (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable), and (iii) execute and deliver a collateral assignment of the Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable), in the form of the Assignment of Interest Rate Cap Agreement;
(c) Agent Borrower shall have received cause a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only Counterparty Opinion to Permitted Encumbrances, (y) showing title be delivered with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement (or Substitute Interest Rate Protection Agreement, as applicable) and the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agentrelated Acknowledgment;
(d) All all amounts then due and payable (beyond the expiration of any applicable notice and cure periods) by Borrowers and any other Person Borrower pursuant to this Agreement or the other Loan Documents as of the Initial Stated Maturity Date, the First Extended Maturity Date or the First Second Extended Maturity Date, as applicable, and all out-of-pocket costs and expenses of Agent and LendersLender, including reasonable fees and expenses of Agent’s and each Lender’s outside counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice Spread (or the Second Extension NoticeBase Rate Spread or the Substitute Rate Spread, as applicable) shall be increased upon the commencement of the Third Extended Term pursuant to, Borrowers shall pay to Agent and in accordance with, the applicable Extension Feedefinition herein;
(f) There shall be no challengewith respect to the Second Extension Option and the Third Extension Option, action, suit, proceeding, the Debt Yield for the twelve (12) full calendar months ending on the last day of the month preceding the month in which the Second Extended Term or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any PropertyThird Extended Term, as determined by Agent acting in its reasonable discretion;applicable, is to commence shall equal or exceed eleven and one-half percent (11.5)%; and
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%Mezzanine Borrower, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates Mezzanine Loan has not theretofore been repaid in full, shall have (i) timely exercised the extension option to a particular date specified therein, in which case such representation shall be true and correct as of such specified dateextend the Mezzanine Loan, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property been entitled pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under terms of the Mezzanine Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues Documents to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which exercise such Guarantor is a party in a form reasonably acceptable to Agentextension option. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunderDate.
Appears in 1 contract
Extension Options. Subject to the provisions of this Section 2.75, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the Stated Initial Maturity Date, to extend the Maturity Date to August November 11, 2020 2010 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11November 10, 2021 2011 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the Third Extension Option), by irrevocable written notice (the Third Extension Notice) delivered to Lender no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to November 12, 2012 (the Third Extended Maturity Date). Borrower's right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) i. no monetary Default, material non-monetary Noticed Default or Event of Default shall have occurred and be continuing both on (A) the date Borrower delivers the applicable Extension Notice and (B) on the date Borrowers deliver Initial Maturity Date, the First Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Extended Maturity Date and the First Second Extended Maturity Date, as applicable; provided, however, that if Borrower has exercised the applicable Extension Option and a Noticed Default is pending at the time of the expiration of the then-applicable term, and Borrower is diligently curing such Noticed Default within the allotted cure period under the Loan Documents, then such term (and the applicable Extension Option) shall be extended through the end of the applicable cure period (provided further that in no event shall such term be extended for more than 30 days unless all Defaults are cured within such period), and upon such timely cure (and satisfaction of the other conditions set forth in this Section 5 for such extension), the term shall be extended for the full one-year period contemplated above;
(b) Borrowers ii. Borrower shall (i) obtain and deliver to Agent Holder not later than one (1) Business Day prior to the first day of the term of the Loan as extended, extended one or more Replacement Interest Rate Cap Protection Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, Counterparty which Replacement Interest Rate Cap Protection Agreement(s) shall comply in all respects with the requirements set forth in the Loan Agreement and shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which no earlier than the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and Date;
iii. Borrower shall deliver an Acknowledgement a Counterparty Opinion with respect to each such Replacement the Interest Rate Cap Agreement;
(c) Agent shall have received a title continuation letter from Protection Agreements and the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or the First Extended Maturity Date, as applicable, and all costs and expenses of Agent and Lenders, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repayrelated Acknowledgments; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers iv. Borrower shall have timely exercised the right extension option to repay a portion extend the terms of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirementNote ▇-▇, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy▇▇▇▇ ▇-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have ▇ and Note B-1 and been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property entitled pursuant to the ▇▇▇ Am PSAterms of such Notes to exercise such extension options; and each Mezzanine Borrower shall have timely exercised the extension option to extend each Mezzanine Note, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of been entitled pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all the terms of the foregoing conditions within the applicable time frames for each, Agent shall have no obligation Mezzanine Loan Documents to extend the applicable Maturity Date hereunderexercise such extension options.
Appears in 1 contract
Sources: Note (Station Casinos Inc)
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11March 9, 2020 2018 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11March 9, 2021 2019 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to March 9, 2020 (the “Third Extended Maturity Date”). Borrower’s right to so extend the applicable Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver the First applicable Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent Lender not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the aggregate Component Outstanding Principal BalanceBalances of the Floating Rate Components, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day Business Day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and at the applicable Strike Price and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent Borrower shall have received deliver a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title Counterparty Opinion with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, related Acknowledgment and (z) showing no exceptions shall deliver to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to AgentLender an executed Collateral Assignment of Interest Rate Protection Agreement;
(d) All amounts due and payable by Borrowers Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or Date, the First Extended Maturity Date, and the Second Extended Maturity Date, as applicable, and all reasonable, out-of-pocket costs and expenses of Agent and LendersLender, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;.
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation If Borrower is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunder.
Appears in 1 contract
Sources: Loan Agreement
Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the Stated Maturity Date, to extend the Maturity Date to August 11June 9, 2020 2017 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety Lender (90which notice may be revoked) days prior to the Stated Maturity Date and no later than thirty (30) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August 11June 9, 2021 2018 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender (which notice may be revoked) no later than thirty (30) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to June 9, 2019 (the “Third Extended Maturity Date”). Borrower’s right to so extend the applicable Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver the First applicable Extension Notice or the Second Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date and the First Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent Lender not later than one (1) Business Day prior to the first day of the term of the Loan as extended, one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day Business Day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and at the applicable Strike Price and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;
(c) Agent Borrower shall have received deliver a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title Counterparty Opinion with respect to the applicable Property vested in Replacement Interest Rate Cap Agreement and the applicable Borrower, related Acknowledgment and (z) showing no exceptions shall deliver to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to AgentLender an executed Collateral Assignment of Interest Rate Protection Agreement;
(d) All amounts due and payable by Borrowers Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date or Date, the First Extended Maturity Date, and the Second Extended Maturity Date, as applicable, and all reasonable, out-of-pocket costs and expenses of Agent and LendersLender, including fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice, as applicable, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to Agent. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Maturity Date hereunder.
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Extension Options. Subject to the provisions of this Section 2.7, Borrowers Borrower shall have the one-time option (the “First Extension Option”), by irrevocable written notice (the “First Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty fifteen (3015) days prior to the Stated Maturity Date, to extend the Maturity Date to August June 11, 2020 2021 (the “First Extended Maturity Date”). In the event Borrowers Borrower shall have duly exercised the First Extension Option, Borrowers Borrower shall have the one-time option (the “Second Extension Option”), by irrevocable written notice (the “Second Extension Notice”) delivered to Agent no earlier than ninety (90) days prior to the Stated Maturity Date and Lender no later than thirty fifteen (3015) days prior to the First Extended Maturity Date, to extend the First Extended Maturity Date to August June 11, 2021 2022 (the “Second Extended Maturity Date”). Borrowers’ In the event Borrower shall have exercised the Second Extension Option, Borrower shall have the option (the “Third Extension Option”), by written notice (the “Third Extension Notice”) delivered to Lender no later than fifteen (15) days prior to the Second Extended Maturity Date, to extend the Second Extended Maturity Date to June 11, 2023 (the “Third Extended Maturity Date”). In the event Borrower shall have exercised the Third Extension Option, Borrower shall have the option (the “Fourth Extension Option”), by written notice (the “Fourth Extension Notice”) delivered to Lender no later than fifteen (15) days prior to the Third Extended Maturity Date, to extend the Third Extended Maturity Date to June 11, 2024 (the “Fourth Extended Maturity Date”). Any Extension Notice may be revoked by Borrower at any time, and Borrower shall reimburse Lender for any reasonable out-of-pocket costs and expenses, including reasonable attorney’s fees and disbursements, incurred directly in conjunction with preparing for the applicable extension. Borrower’s right to so extend the Maturity Date shall be subject to the satisfaction of the following conditions precedent prior to each extension hereunder (and each such condition shall be satisfied in connection with the exercise of each Extension Option unless such condition is otherwise expressly specified to apply solely to the First Extension Option or the Second Extension Option):hereunder:
(a) (i) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the date Borrowers deliver Borrower delivers the First Extension Notice, the Second Extension Notice, the Third Extension Notice or the Second Fourth Extension Notice, as applicable, and (ii) no monetary Default, material non-monetary Default or Event of Default shall have occurred and be continuing on the Stated Maturity Date, the First Extended Maturity Date, the Second Extended Maturity Date and the First Third Extended Maturity Date, as applicable;
(b) Borrowers Borrower shall (i) obtain and deliver to Agent not later than one (1) Business Day prior to the first day of the term of the Loan as extended, Lender one or more Replacement Interest Rate Cap Agreements from an Approved Counterparty, in a notional amount equal to the Outstanding Principal Balance, which Replacement Interest Rate Cap Agreement(s) shall be (A) effective for the period commencing on the day immediately following the then applicable Maturity Date (prior to giving effect to the applicable Extension Option) and ending on the last day of the Interest Period in which the applicable extended Maturity Date occurs and (B) otherwise on same terms set forth in Section 2.6 and (ii) execute and deliver an Acknowledgement with respect to each such Replacement Interest Rate Cap Agreement;Agreement;and
(c) Agent shall have received a title continuation letter from the Title Company (x) confirming that the Mortgage remains a valid first-priority Lien against each Property, subject only to Permitted Encumbrances, (y) showing title to the applicable Property vested in the applicable Borrower, and (z) showing no exceptions to title other than those previously approved by Agent or permitted under the Loan Documents, in a form reasonably satisfactory to Agent;
(d) All amounts due and payable by Borrowers Borrower and any other Person pursuant to this Agreement or the other Loan Documents as of the Stated Maturity Date, the First Extended Maturity Date, the Second Extended Maturity Date or the First Third Extended Maturity Date, as applicable, and all reasonable out-of-pocket costs and expenses of Agent and LendersLender, including reasonable out-of-pocket fees and expenses of Agent’s and each Lender’s counsel, in connection with the Loan and/or the applicable extension of the Term shall have been paid in full;
(e) On the date of delivery of the First Extension Notice or the Second Extension Notice. Neither Lender, as applicablenor any other Person, Borrowers shall pay to Agent the applicable Extension Fee;
(f) There shall be no challenge, action, suit, proceeding, or investigation is pending or threatened in writing against any part of any Property or any Borrower by any person, in any court or before any Governmental Authority which is reasonably likely to materially adversely affect the value of any Property, as determined by Agent acting in its reasonable discretion;
(g) In connection with the exercise of the First Extension Option:
(i) the Debt Yield as of the Stated Maturity Date shall be equal to or greater than 10.0%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in charge an amount sufficient extension fee to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-seven percent (77%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the Stated Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(h) In connection with the exercise of the Second Extension Option only:
(i) the Debt Yield as of the First Extended Maturity Date shall be equal to or greater than 10.5%, provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Debt Yield requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay; and
(ii) the Loan to Value Ratio shall be equal to or less than seventy-five percent (75%), provided that Borrowers shall have the right to repay a portion of the Outstanding Principal Balance as of the First Extended Maturity Date in an amount sufficient to satisfy the foregoing Loan to Value Ratio requirement, which repayment amount shall be calculated in Agent’s sole but good faith discretion, provided further, that in lieu of repaying the Outstanding Principal Balance in such required amount, Borrowers may deliver to Agent a Letter of Credit for the amount that Borrowers would otherwise be required to repay.
(i) the closing contemplated in the Pan Am PSA shall have been completed and in connection therewith, an amount of the Outstanding Principal Balance equal to the Allocated Loan Amount of the Pan Am Property shall have been repaid; provided that the condition set forth in this clause (i) shall be deemed satisfied even if the closing contemplated in the Pan Am PSA has not been completed if and only if such forward purchase was not completed due solely by a default by the Pan Am Purchaser;
(j) The representations and warranties made by Borrowers in the Loan Documents or otherwise made by Borrowers in connection therewith after the date thereof shall have been true and correct in all material respects on the date on which made and shall also be true and correct as if remade upon the exercise of the applicable Extension Option and on Initial Maturity Date and the First Extended Maturity Date (except (i) to the extent the subject matter of such representation or warranty relates to a particular date specified therein, in which case such representation shall be true and correct as of such specified date, and (ii) to the extent such representation or warranty is no longer true as a result of the passage of time, the ordinary course of conduct of Borrowers, the sale of the Pan Am Property pursuant to the ▇▇▇ Am PSA, and any actions expressly permitted under the Loan Documents, provided that Borrowers, in each case, have complied with their covenants contained in the Loan Documents); and
(k) Guarantor continues to comply with the covenants contained in the Loan Document to which Guarantor is a party, and Guarantor has provided to Agent, on the Stated Maturity Date and the First Extended Maturity Date, a reaffirmation of pursuant to which Guarantor reaffirms all of its obligations under each Loan Document to which such Guarantor is a party in a form reasonably acceptable to AgentBorrower. If Borrowers are Borrower is unable to satisfy all of the foregoing conditions within the applicable time frames for each, Agent Lender shall have no obligation to extend the applicable Stated Maturity Date hereunder. As soon as is reasonably practicable following any extension of the Stated Maturity Date pursuant to this Section 2.7 (but in any event no later than ten (10) Business Days following the effective date of such extension), Borrower shall deliver to Lender a Counterparty Opinion with respect to the Replacement Interest Rate Cap Agreement and the related Acknowledgment that were obtained in connection with such extension.
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Sources: Loan Agreement (Alexanders Inc)