Partial Release. (a) The parties acknowledge that the Release Parcel is being encumbered by the Lien of the Mortgage solely by reason of the fact that the Release Parcel has not been legally subdivided and is not a separate tax lot and that it is the intent of the parties to release the Release Parcel upon the completion of the subdivision and Borrower's compliance with the provisions of this Section 10.24. Provided no Event of Default shall have occurred and remain uncured and provided Borrower desires to transfer title to the Release Parcel to an entity in which the REIT has at least a twenty percent (20%) direct or indirect ownership interest and whose day-to-day operations are controlled by the REIT. Borrower shall have the right to obtain a release of the lien of the Mortgage (and related Loan Documents) as to the Release Parcel for development by such entity consistent with other properties owned or operated by the REIT and, if necessary to satisfy the conditions set forth in this Section 10.24, a modification of the REA in connection with such release (the "REA AMENDMENT") upon satisfaction of the following conditions precedent: (i) Borrower shall provide Lender not less than thirty (30) days notice (A) giving a brief narrative description of the proposed use of any improvements to be constructed on the Release Parcel, and (B) specifying the date (the "RELEASE DATE") on which the partial release is to occur provided, however, that Borrower may postpone the Release Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension; (ii) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 10.24 and Lender shall provide to Borrower's counsel such documents as Borrower's counsel shall reasonably request in order to give such opinion; (iii) Borrower shall have delivered to Lender an Officer's Certificate certifying that the partial release pursuant to this Section 10.24 does not violate any of the provisions of the Leases or the Operating Agreements, including, without limitation, provisions relating to the availability of parking at the Property; (iv) Borrower shall have delivered to Lender (A) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that each legal lot of the Release Parcel has been legally subdivided for zoning lot purposes from the remainder of the Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that the balance of the Property separately conforms to and is in material compliance with all applicable Legal Requirements pertaining to zoning and the subdivision and constitutes one or more separate tax lot(s), and (C) an Officer's Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Property; (v) To the extent that an amendment to the REA is necessary to satisfy any of the requirements of this Section 10.24, Borrower shall have delivered a copy of any REA Amendment to be executed on or prior to the Release Date which will provide for any of the reservations required by Section 10.24(a)(iv) and which will otherwise conform to the other requirements of this Section 10.24 and may contain cross-easements for the benefit of the Release Parcel and the remainder of the Property in respect of access, driveways, parking, utilities, drainage flows, storm and sanitary sewers, and other customary purposes. The REA Amendment will contain only those provisions which (x) are necessary or desirable to accommodate the proposed development described in this
Appears in 1 contract
Partial Release. Notwithstanding the foregoing, the Agent shall release the lien and security interest granted to or held by the Agent upon a particular Facility (and the Real Estate and other Collateral directly related thereto) upon the express condition that each and all of the following conditions precedent shall have been fulfilled or complied with to the satisfaction of the Agent in its sole discretion (a “Partial Release Transaction”):
(a) The parties acknowledge that a written request for the Partial Release Parcel Transaction (which is being encumbered revocable by the Lien of Borrower) is provided to the Mortgage solely Agent by reason of the fact date that the Release Parcel has not been legally subdivided and is not a separate tax lot less than sixty (60) days and that it is not more than ninety (90) days prior to the intent of desired date upon which the parties Borrower wishes to release effect the Partial Release Parcel upon Transaction, together with such information regarding the completion of requested Partial Release Transaction as the subdivision and Borrower's compliance with the provisions of this Section 10.24. Provided Agent may reasonably request in connection therewith;
(b) no Default or Event of Default shall have occurred and remain uncured be continuing;
(c) the Agent shall have received a Compliance Certificate demonstrating compliance (on a pro forma basis, both prior to and provided Borrower desires to transfer title after giving effect to the consummation of the requested Partial Release Parcel Transaction) with all financial covenants (including, without limitation, the financial ratios described in Section 9.17 hereof) contained in this Agreement;
(d) simultaneously with the closing of the Partial Release Transaction, the Agent receives (for the benefit of the Lenders) a prepayment of the Loans in the amount and as otherwise provided in Section 2.7(c) hereof, and after giving pro forma effect to an entity in which the REIT has at least a twenty receipt of such prepayment the then-outstanding aggregate principal balance of the Loans shall not exceed sixty-five percent (2065.00%) direct or indirect ownership interest and whose day-to-day operations are controlled by the REIT. Borrower shall have the right to obtain a release of the lien loan to value (including only the remaining Facilities (and the Real Estate and other Collateral directly related thereto) after giving effect to the Partial Release Transaction and any updated appraisals obtained pursuant to Section 2.7(c) hereof) on a “leased fee” basis as reasonably determined by Agent;
(e) the Borrower pays to the Agent all reasonable, out-of-pocket costs and expenses of the Mortgage (Agent, including the reasonable fees, charges and related Loan Documents) as to disbursements of counsel for the Release Parcel for development by such entity consistent with other properties owned or operated by the REIT andAgent, if necessary to satisfy the conditions set forth in this Section 10.24, a modification of the REA in connection with such release (the "REA AMENDMENT") upon satisfaction review, approval and consummation of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (A) giving a brief narrative description of the proposed use Partial Release Transaction and preparation of any improvements to be constructed on amendments, modifications or waivers of this Agreement and the other Financing Agreements in connection therewith (whether or not the Partial Release Parcel, and (B) specifying the date (the "RELEASE DATE") on which the partial release Transaction is to occur provided, however, that Borrower may postpone the Release Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extensionconsummated);
(iif) B▇▇▇▇▇▇▇ and Guarantor shall have executed and delivered to Agent an agreement in form and covenant reasonably acceptable to Agent reaffirming their respective obligations under the Financing Agreements; and
(g) the Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard executes and delivers such agreements and instruments in commercial lending transactions favor of, and subject only to customary qualifications, assumptions and exceptions opining, that if a Securitization of any portion of the Loan has occurredprovides such further assurances to, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 10.24 and Lender shall provide to Borrower's counsel such documents as Borrower's counsel shall reasonably request Agent, in order to give such opinion;
(iii) Borrower shall have delivered to Lender an Officer's Certificate certifying that maintain, in the partial release pursuant to this Section 10.24 does not violate any Agent’s reasonable discretion, the first priority lien and security interest of the provisions Agent in the remainder of the Leases or Collateral (including the Operating Agreementsremainder of the Facilities and Real Estate), including, without limitation, provisions reasonable survey updates and title updates and endorsements, if requested by the Agent, in its reasonable discretion, in connection with the consummation of the Partial Release Transaction. Upon satisfaction of all other conditions to a Partial Release Transaction in this Section 2.14, the term “Property” shall thereafter no longer include such released Property, the term “Facility” shall thereafter no longer include the Facility located on such released Property, and the term “Borrower” shall thereafter no longer include such released Borrower. Nothing in this Section 2.14 shall release any Borrower or Guarantor from any liability or obligation relating to the availability of parking at the Property;
(iv) Borrower shall have delivered to Lender (A) at Borrower's option, (x) an endorsement any environmental matters arising under the Financing Agreements with respect to the Title Insurance Policysuch released Property, and (y) an opinion of counsel (any liability under any Guaranty relating to such released Borrower or such released Property arising from counsel reasonably acceptable to Lender) events or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that each legal lot of the Release Parcel has been legally subdivided for zoning lot purposes from the remainder of the Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that the balance of the Property separately conforms to and is in material compliance with all applicable Legal Requirements pertaining to zoning and the subdivision and constitutes one or more separate tax lot(s), and (C) an Officer's Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Property;
(v) To the extent that an amendment to the REA is necessary to satisfy any of the requirements of this Section 10.24, Borrower shall have delivered a copy of any REA Amendment to be executed on or circumstances occurring prior to the such Partial Release Date which will provide for any of the reservations required by Section 10.24(a)(iv) and which will otherwise conform to the other requirements of this Section 10.24 and may contain cross-easements for the benefit of the Release Parcel and the remainder of the Property in respect of access, driveways, parking, utilities, drainage flows, storm and sanitary sewers, and other customary purposes. The REA Amendment will contain only those provisions which (x) are necessary or desirable to accommodate the proposed development described in thisTransaction.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Strawberry Fields REIT, Inc.)
Partial Release. (a) The parties acknowledge that Upon the Release Parcel is being encumbered by the Lien of the Mortgage solely by reason of the fact that the Release Parcel has not been legally subdivided and is not a separate tax lot and that it is the intent of the parties to release the Release Parcel upon the completion of the subdivision and Borrower's compliance with the provisions of this Section 10.24. Provided no Event of Default shall have occurred and remain uncured and provided Borrower desires to transfer title to the Release Parcel to an entity indefeasible payment in which the REIT has at least a twenty percent (20%) direct or indirect ownership interest and whose day-to-day operations are controlled by the REIT. Borrower shall have the right to obtain a release of the lien of the Mortgage (and related Loan Documents) as to the Release Parcel for development by such entity consistent with other properties owned or operated by the REIT and, if necessary to satisfy the conditions set forth in this Section 10.24, a modification of the REA in connection with such release (the "REA AMENDMENT") upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (A) giving a brief narrative description of the proposed use of any improvements to be constructed on the Release Parcel, and (B) specifying the date (the "RELEASE DATE") on which the partial release is to occur provided, however, that Borrower may postpone the Release Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension;
(ii) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, that if a Securitization of any portion full of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 10.24 and Lender shall provide to Borrower's counsel such documents as Borrower's counsel shall reasonably request in order to give such opinion;
(iii) Borrower shall have delivered to Lender an Officer's Certificate certifying that the partial release pursuant to this Section 10.24 does not violate any of the provisions of the Leases or the Operating Agreements, including, without limitation, provisions relating any Prepayment Amount or other amounts payable by the Borrower with respect to the availability of parking at the Property;
(ivsuch Loan) Borrower shall have delivered to Lender (A) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that each legal lot of the Release Parcel has been legally subdivided for zoning lot purposes from the remainder of the Property pursuant to a zoning lot subdivision in accordance with applicable lawthe provisions of the Promissory Note evidencing such Loan, (B) at Borrower's option, (x) an endorsement the security interest hereunder with respect to the Title Insurance PolicyCollateral shall terminate, and the Secured Party, at the expense of the Borrower, will execute and deliver to the Borrower the proper instruments (yincluding UCC partial release statements) an opinion acknowledging the termination of counsel such security interest, and will duly assign, transfer and deliver (from counsel reasonably acceptable to Lenderwithout recourse, representation or warranty) or (z) a certificate such of an architect (from an architect reasonably acceptable to Lender and licensed to practice the Collateral as may be in the State) indicating that the balance possession of the Property separately conforms Secured Party and has not theretofore been sold or otherwise applied or released pursuant to this Security Agreement, to the Borrower, and is in material compliance with all applicable Legal Requirements pertaining shall take such other action as the Borrower may reasonably request to zoning effectuate the foregoing. Notwithstanding the foregoing to the contrary, Secured Party shall not be required to release its Lien as to any Collateral, unless either: (a) (i) the Consolidated FCCR of the Consolidated Pledged Stores which will not be released, exceeds 1.25 to 1.00 for the twelve (12) month period immediately preceding the date of payment of such Loan; and (ii) the subdivision and constitutes one aggregate indebtedness of Borrower to Secured Party (or more separate tax lot(sits Affiliates or assigns), with respect to the Consolidated Pledged Stores which will not be released is less than seventy percent (70.0%) of the value of such Consolidated Pledged Stores, based upon a current appraisal performed by such appraisal firm regularly employed by Secured Party; and (Cb) an Officer's Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder release of the Property to comply with all Leases of such remainder Collateral and with all Operating Agreements Pledged Store would not result in a decrease in the Consolidated FCCR calculated in clause (a)(i) above, or in the loan-to-value ratio calculated in (a)(ii) above (calculated by first including the Unit FCCR and which is adequate for the proper use and enjoyment loan-to-value ratio of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Property;
(v) To the extent that an amendment to the REA is necessary to satisfy any of the requirements of this Section 10.24, Borrower shall have delivered a copy of any REA Amendment to be executed on or prior to the Release Date which will provide for any of the reservations required by Section 10.24(a)(iv) and which will otherwise conform to the other requirements of this Section 10.24 and may contain cross-easements for the benefit of the Release Parcel and the remainder of the Property in respect of access, driveways, parking, utilities, drainage flows, storm and sanitary sewersPledged Store, and other customary purposes. The REA Amendment will contain only those provisions which (x) are necessary or desirable to accommodate the proposed development described in thisthen excluding such amounts).
Appears in 1 contract
Partial Release. The Loan is secured by, among other things, the Mortgages covering six (a6) The parties acknowledge separate and distinct parcels of improved real property, which are identified on Exhibit A-1 through Exhibit A-6, annexed hereto and made a part hereof, and all Improvements thereon. Lender agrees to release from the lien of the Mortgages and the other security documents (each, a "Release") one or more of said parcels, subject to satisfaction of the following conditions precedents:
(i) Borrowers shall deliver to Lender a written request (a "RELEASE NOTICE"), not more than one hundred twenty (120) nor less than thirty (30) days before the date of any requested Release, containing among other things, the parcel that is the subject of the Release Parcel is being encumbered by Notice (the Lien "RELEASE PROPERTY") and the proposed date of the Mortgage solely by reason Release (the "RELEASE DATE");
(ii) Borrowers shall pay to Lender a release price (the "RELEASE PRICE") equal to the higher of (A) the applicable amount set forth on Schedule 12.1 with respect to the Release Property or (B) the amount required to satisfy the requirements of subsection (iii) below;
(iii) the principal amount of the fact that Loan after application of the Release Parcel has not been legally subdivided and is not a separate tax lot and that it is Price (the intent "REDUCED LOAN AMOUNT") shall be no more than sixty percent (60%) of Lender's then underwritten value of the parties to release Projects other than the Release Parcel upon Property (the completion "REMAINING PROJECTS") and the value of the subdivision Remaining Projects shall be not less than $35,000,000, based on (I) Appraisals of the Remaining Projects reasonably acceptable to Lender and Borrower's compliance with dated within three (3) months of the provisions projected release date and (II) the underwriting criteria and methodology applied by Lender generally to properties similar to the Real Property at the time of this Section 10.24. Provided the Release Notice;
(iv) no Default shall have occurred and be continuing and no Event of Default shall have occurred and remain uncured and provided Borrower desires to transfer title to the Release Parcel to an entity in which the REIT has at least a twenty percent (20%) direct on either or indirect ownership interest and whose day-to-day operations are controlled by the REIT. Borrower shall have the right to obtain a release both of the lien of the Mortgage (and related Loan Documents) as to the Release Parcel for development by such entity consistent with other properties owned or operated by the REIT and, if necessary to satisfy the conditions set forth in this Section 10.24, a modification of the REA in connection with such release (the "REA AMENDMENT") upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (A) giving a brief narrative description of the proposed use of any improvements to be constructed date on which the Release Parcel, and Notice is delivered to Lender or (B) specifying the date (the "RELEASE DATE") on which the partial release is to occur provided, however, that Borrower may postpone actual Release would occur;
(v) the representations and warranties made by Borrowers in this Agreement and in the other Loan Documents shall be true and correct in all material respects on and as of the Release Date from time to time with the same force and effect as long if made on and as the extended date is at least ten (10) Business Days after Notice of such extensiondate;
(iivi) Borrower Borrowers shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 10.24 and Lender shall provide to Borrower's counsel such documents as Borrower's counsel shall reasonably request in order to give such opinion;
(iii) Borrower shall have delivered to Lender an Officer's Certificate certifying that confirming the partial release pursuant satisfaction of the conditions set forth in the foregoing clauses;
(vii) Borrowers shall have executed and delivered or caused to this Section 10.24 does not violate be executed and delivered to Lender (i) amendments and/or modifications of any of the provisions Loan Documents as reasonably required by Lender, (ii) reaffirmations of any Guaranty and (iii) such other agreements as Lender may reasonably require to reflect the release of Property;
(viii) Borrowers shall pay all costs and expenses incurred by Lender in connection with the Release and the determination of the Leases or the Operating AgreementsRelease, including, without limitation, provisions relating to the availability of parking at the Property;Lender's reasonable attorney's fees and expenses; and
(ivix) Borrower Borrowers shall have delivered paid to Lender on or before the Release Date, by wire transfer of immediately available funds, (A) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that each legal lot of the Release Parcel has been legally subdivided for zoning lot purposes from Price, as a principal prepayment under the remainder of the Property pursuant to a zoning lot subdivision in accordance with applicable lawLoan, (B) at Borrower's optionall accrued interest, (x) an endorsement costs, prepayment premiums or fees relating to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that the balance of the Property separately conforms to and is in material compliance with all applicable Legal Requirements pertaining to zoning and the subdivision and constitutes one or more separate tax lot(s)Release, and (C) an Officer's Certificate with supporting documentation indicating that either the Exit Fee (y) sufficient parking remains on the remainder of the Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available if any), to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Property;
(v) To the extent that an amendment to the REA is necessary to satisfy any of the requirements of this Section 10.24, Borrower shall have delivered a copy of any REA Amendment to be executed on or prior to the Release Date which will provide for any of the reservations required payable by Section 10.24(a)(iv) and which will otherwise conform to the other requirements of this Section 10.24 and may contain cross-easements for the benefit reason of the Release Parcel and the remainder principal repayment relating thereto. In connection with Lender's review of the above conditions, Borrowers shall provide Lender with such information as Lender may reasonably require, including, but not limited to, the following: (i) operating statements for the Remaining Projects for the trailing twelve (12) months; (ii) a then-current rent roll/census report for the Real Property; (iii) evidence of no material adverse change in the condition of Borrowers, the Remaining Projects and any Guarantor from the Closing Date; and (iv) an updated or new Appraisal of the Remaining Projects. Upon release of the Release Property, Lender shall notify the applicable bank that Lender has also released its rights to any Clearing Account or Governmental Clearing Account into which income from the Release Property in respect is deposited. EXECUTED as of accessthe date first set forth above. 4499 ACUSHNET AVENUE, drivewaysLLC B▇: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇tnership, parkingL.P. Its Sole Member By: /s/ R. Steven Hamner ------------------------------------ R. Steven Hamner Executive ▇▇▇▇ ▇▇▇▇▇▇▇▇t and CFO 8451 PEARL STREET, utilitiesLLC By: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇tnership, drainage flowsL.P. Its Sole Member By: /s/ R. Steven Hamner ------------------------------------ R. Steven Hamner Executive ▇▇▇▇ ▇▇▇▇▇▇▇▇t and CFO 92 BRICK ROAD, storm LLC By: MPT Operating Partnership, L.P. Its Sole Member By: /s/ R. Steven Hamner ------------------------------------ R. Steven Hamner Executive ▇▇▇▇ ▇▇▇▇▇▇▇▇t and sanitary sewersCFO 1300 CAMPBELL LANE, LLC By: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇tnership, L.P. Its Sole Member By: /s/ R. Steven Hamner ------------------------------------ R. Steven Hamner Executive ▇▇▇▇ ▇▇▇▇▇▇▇▇t and other customary purposesCFO KENTFIELD THCI HOLDING COMPANY LLC By: MPT Operating Partnership, L.P. Its Sole Member By: /s/ R. Steven Hamner ------------------------------------ R. Steven Hamner Executive ▇▇▇▇ ▇▇▇▇▇▇▇▇t and CFO SAN JOAQUIN HEALTH CARE ASSOCIATES, LP By: MPT of California, LLC Its General Partner By: MPT Operating Partnership, L.P. Its Sole Member By: /s/ R. Steven Hamner ------------------------------------ R. Steven Hamner Executive ▇▇▇▇ ▇▇▇▇▇▇▇▇t and CFO [Signatures continued on next page] LENDER: MERRILL LYNCH CAPITAL, a division of ▇▇▇▇ill Lynch Business Financial ▇▇r▇▇▇▇▇ Inc., a Delaware corporation By: /s/ Garret W. Fletcher ------------------------------------ Name: Garret W. Fletcher Title: Vi▇▇ ▇▇▇▇▇▇▇▇▇ APPENDIX A FINANCIAL COVENANTS
1. INTEREST COVERAGE RATIO (EBITDA/INTEREST EXPENSE). The REA Amendment will contain only those provisions which (x) are necessary or desirable to accommodate Interest Coverage Ratio shall be a minimum of 2 to1 for the proposed development described in thisfirst Defined Period after the Closing Date and for each subsequent Defined Period thereafter.
Appears in 1 contract
Partial Release. In the event that Mortgagor wishes to sell the Mortgaged Property, and if the Adjacent Premises is not be sold simultaneously, and provided that neither Mortgagor nor the owner of the Adjacent Premises is in default in the performance of any of their respective obligations under this Mortgage or any other loan documents relating to this Mortgage or the mortgage on the Adjacent Premises, and (i) the leases of the Adjacent Premises have a remaining term of at least two (2) years, or (ii) if any leases have a remaining term of less than two (2) years, ▇▇▇▇▇▇▇ Industrial, LLC shall enter into a lease of such space for the remainder of such two (2) year period (the term of which shall commence upon expiration of such existing lease(s), unless they shall thereafter be extended or renewed), Mortgagee agrees to provide a release of mortgage as to the Mortgaged Property and to release all other security interests related to the Mortgaged Property for a principal payment in an amount equal to the greater of: (1) (a) The parties acknowledge 48.64% of the outstanding principal balance of the Loan, if third party tenants have remaining term of at least two (2) years, or (b) 53.51% of the outstanding principal balance of the Loan, if a lease from ▇▇▇▇▇▇▇ Industrial, LLC has been required; or (2) an amount sufficient that the Release Parcel Adjacent Premises is being encumbered by in compliance with the Lien financial covenants set forth in Section 10 of the Mortgage solely by reason of the fact that the Release Parcel has not been legally subdivided and is not a separate tax lot and that it is the intent of the parties to release the Release Parcel upon the completion of the subdivision and Borrower's compliance with the provisions of this Section 10.24. Provided no Event of Default shall have occurred and remain uncured and provided Borrower desires to transfer title respect to the Release Parcel to an entity in which the REIT has at least a twenty percent (20%) direct or indirect ownership interest and whose day-to-day operations are controlled by the REIT. Borrower shall have the right to obtain a release of the lien of the Mortgage (and related Loan Documents) as to the Release Parcel for development by such entity consistent Adjacent Premises, together with other properties owned or operated by the REIT and, if necessary to satisfy the conditions set forth in this Section 10.24, a modification of the REA in connection with such release (the "REA AMENDMENT") upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (A) giving a brief narrative description of the proposed use payment of any improvements to prepayment and/or swap breakage fee which may be constructed on the Release Parcel, and (B) specifying the date (the "RELEASE DATE") on which the partial release is to occur provided, however, that Borrower may postpone the Release Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension;
(ii) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code due as a result of such prepayment. If required by Mortgagee, an updated appraisal to confirm compliance with the partial loan to value covenant may be required. Upon release pursuant to this Section 10.24 and Lender shall provide to Borrower's counsel such documents as Borrower's counsel shall reasonably request in order to give such opinion;
(iii) Borrower shall have delivered to Lender an Officer's Certificate certifying that the partial release pursuant to this Section 10.24 does not violate any of the provisions of Mortgaged Property, Mortgagor shall be automatically released from all obligations under the Leases Note and every other document or the Operating Agreements, including, without limitation, provisions instrument relating to the availability Loan except for any obligations which expressly survive the payment of parking at the Property;
(iv) Borrower Loan; and ▇▇▇▇▇▇▇ Industrial, LLC shall have delivered to Lender (A) at Borrower's option, (x) an endorsement be released from all obligations under its Non-Recourse Guaranty of the Loan as they pertain to the Title Insurance PolicyMortgaged Property, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in except for any obligations which expressly survive the State) indicating that each legal lot payment of the Release Parcel has been legally subdivided for zoning lot purposes from the remainder Loan. The liability of the Property pursuant to a zoning lot subdivision Mortgagor shall remain in accordance with applicable law, (B) at Borrower's option, (x) an endorsement full force and effect as to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender remaining balance due and licensed to practice in the State) indicating that the balance of the Property separately conforms to and is in material compliance with all applicable Legal Requirements pertaining to zoning and the subdivision and constitutes one or more separate tax lot(s), and (C) an Officer's Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available obligations as they pertain to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Property;
(v) To the extent that an amendment to the REA is necessary to satisfy any of the requirements of this Section 10.24, Borrower shall have delivered a copy of any REA Amendment to be executed on or prior to the Release Date which will provide for any of the reservations required by Section 10.24(a)(iv) and which will otherwise conform to the other requirements of this Section 10.24 and may contain cross-easements for the benefit of the Release Parcel and the remainder of the Property in respect of access, driveways, parking, utilities, drainage flows, storm and sanitary sewers, and other customary purposes. The REA Amendment will contain only those provisions which (x) are necessary or desirable to accommodate the proposed development described in thisAdjacent Premises.
Appears in 1 contract
Partial Release. (a) The parties acknowledge that the Release Parcel is being encumbered by the Lien of the Mortgage solely by reason of the fact that the Release Parcel has not been legally subdivided and is not a separate tax lot and that it is the intent of the parties to release the Release Parcel upon the completion of the subdivision and Borrower's compliance with the provisions of this Section 10.24. Provided no Event of Default shall have occurred and remain uncured and provided Borrower desires to transfer title to the Release Parcel to an entity in which the REIT has at least a twenty percent (20%) direct or indirect ownership interest and whose day-to-day operations are controlled by the REIT. Borrower shall have the right to obtain a release of the lien of the Mortgage (and related Loan Documents) as to the Release Parcel for development by such entity consistent with other properties owned or operated by the REIT and, if necessary to satisfy the conditions set forth in this Section 10.24, a modification of the REA in connection with such release (the "REA AMENDMENT") upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender Upon not less than thirty (30) days days’ prior written notice from Borrower, Lender shall release (Athe “Partial Release”) giving a brief narrative description from the lien of this Instrument that portion of the proposed Property known as the “North Block” and more particularly described in Exhibit D attached hereto (the “Release Parcel”), provided that (i) at the time such request is made and at the time of the Partial Release, there is no Event of Default under the Documents; (ii) Borrower pays to Lender at the time of the release an amount equal to the sum of (a) an amount equal to 28.8% of the unpaid principal balance of the Loan at that time (the “North Parcel Allocated Loan Amount”) plus (b) the Prepayment Premium applicable to the North Parcel Allocated Loan Amount; plus (c) all accrued interest with respect to the North Parcel Allocated Loan Amount, (iii) Borrower delivers to Lender, at Borrower’s sole cost, such title insurance coverage as Lender may deem reasonably necessary to insure that this Instrument remains a valid first lien against the remainder of the Property (the “Remaining Property”), with access to all of the public sidewalks surrounding the Remaining Property and with access at the same access points as exist on the date hereof to the publicly dedicated streets of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, subject only to such exceptions to title as were evidenced in the title policy insuring this Instrument, current taxes due but not yet payable, such exceptions approved in writing by Lender after the date hereof, and such other exceptions as may be approved by Lender, in its sole discretion; (iv) Lender shall have received evidence satisfactory to it that the Debt Service Coverage Ratio (using the Debt Service Coverage Ratio and NOI definitions contained in Section 5.02) is at least 1.60 to 1.00 for the preceding twelve (12) month period and Lender receives satisfactory evidence that this Debt Service Coverage Ratio will be maintained for the next succeeding twelve (12) months with respect to the Remaining Property; (v) the Loan to Value Ratio (as defined in Section 5.02) of the Loan (after the payment of the North Parcel Allocated Loan Prudential Loan No. 706108495 Clarendon Center/Deed of Trust 28 Amount) to the Remaining Property shall not exceed fifty-five percent (55%); (vi) Lender shall have received satisfactory evidence that both the Release Parcel and the Remaining Property shall be in compliance with all applicable laws, ordinances, rules and regulations, including, but not limited to, lot split and platting requirements, building codes, subdivision, zoning, and land use laws; (vii) Lender shall have received satisfactory evidence that both the Release Parcel and the Remaining Property will constitute separate real estate tax parcels, and accordingly each will be separately taxed and assessed; (viii) any space lease applicable to the Release Parcel shall be separate from all space leases applicable to the Remaining Property and any lease on the Remaining Property shall not be dependent on or tied in any way to any space lease on the Release Parcel; (ix) Borrower shall pay, at the time of the request for the Partial Release, a servicing fee of $10,000 and Lender’s legal fees and disbursements and expenses incurred in connection with the request for the Partial Release whether or not the request for the Partial Release is granted by Lender; (x) Lender shall have determined, in its sole discretion, that the Remaining Property will have all of the underground parking below the Remaining Property (which is comprised of 460 spaces) and no other property or property owner shall be granted an easement to use any improvements of such 460 parking spaces under the Remaining Property except for an easement (in form and substance reasonably satisfactory to Lender) for use by the public and customers of the retail tenants on the Release Parcel; (xi) Lender shall have received evidence satisfactory to Lender that all necessary Tenant approvals (if any) have been obtained in connection with the Partial Release; (xii) Borrower and any guarantor shall reaffirm their respective obligations under the Documents; (xiii) the Partial Release shall not affect any obligations of Borrower or any guarantor under the Documents, except that the monthly principal and interest payment amount due under Section 1(b) of the Note shall be adjusted in accordance with the provisions of Paragraph 1(e) of the Note; (xiv) Borrower shall have created easements for utilities, signage, drainage, parking, ingress and egress and other appropriate purposes in, on and over the Release Parcel for the benefit of the Remaining Property to the extent required by Lender and such easements shall be insured as appurtenances in Lender’s title insurance policy via appropriate endorsements; and (xv) Lender shall receive an updated survey and legal descriptions of the Release Parcel and the Remaining Property. Notwithstanding anything contained herein to the contrary, if after payment of the North Parcel Allocated Loan Amount the financial tests set forth in clauses (iv) and (v) above would not be satisfied, then Borrower shall have the right to increase the North Parcel Allocated Loan Amount to the amount that would need to be constructed on repaid in order to cause the conditions set forth in clauses (iv) and (v) to be satisfied.
(b) This Section 5.03 shall be personal to the original Borrower under the Loan, and no transferee (including, but not limited to a transferee pursuant to Section 5.02) shall have any rights under this Section 5.03.
(c) In the event there is Damage to only the Release Parcel or a Taking involving only the Release Parcel, and (BLender elects, pursuant to Section 3.07(b) specifying or 3.08(c), to apply the date insurance proceeds or the Award to payment of the Obligations (the "RELEASE DATE") on which the partial release is to occur provided“Application Election”), however, that then Borrower may postpone elect, by written notice to Lender within 10 days after Borrower has been given notice of the Application Election by Lender, to obtain the Partial Release Date from time to time as so long as Borrower complies with all the extended date is at least ten requirements of Section 5.03(a) above. In such event Borrower will be entitled to a credit against the payment of the North Parcel Allocated Loan Amount equal to the net payment received by Lender pursuant to Section 3.07(b)(iii)(2)(A) or Section 3.08(c)(2)(A) (10) Business Days after Notice of such extension;the “Paydown Credit”). No Prepayment Premium will be due in connection with the Paydown Credit, but Borrower will be required to pay a Prepayment Premium on the difference between the North Parcel Allocated Loan Amount and the Paydown Credit.
(iid) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 10.24 and Lender shall provide to Borrower's counsel such documents as Borrower's counsel shall reasonably request in order to give such opinion;
(iii) Borrower shall have delivered to Lender an Officer's Certificate certifying that the partial release pursuant to this Section 10.24 does not violate any of Notwithstanding the provisions of Section 3.05(d) above, Lender agrees to consider in good faith requests from Borrower for Lender’s consent to any easements over the Leases or the Operating Agreements, including, without limitation, provisions relating to the availability of parking at the Property;
(iv) Borrower shall have delivered to Lender (A) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that each legal lot of the Release Parcel has been legally subdivided for zoning lot purposes from the remainder of the Remaining Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that the balance of the Property separately conforms to and is in material compliance with all applicable Legal Requirements pertaining to zoning and the subdivision and constitutes one or more separate tax lot(s), and (C) an Officer's Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Property;
(v) To the extent that an amendment to the REA is necessary to satisfy any of the requirements of this Section 10.24, Borrower shall have delivered a copy of any REA Amendment to be executed on or prior to the Release Date which will provide for any of the reservations required by Section 10.24(a)(iv) and which will otherwise conform to the other requirements of this Section 10.24 and may contain cross-easements for the benefit of the Release Parcel and in connection with the remainder Partial Release. Prudential Loan No. 706108495 Clarendon Center/Deed of the Property in respect of access, driveways, parking, utilities, drainage flows, storm and sanitary sewers, and other customary purposes. The REA Amendment will contain only those provisions which (x) are necessary or desirable to accommodate the proposed development described in thisTrust
Appears in 1 contract
Sources: Deed of Trust, Security Agreement and Fixture Filing
Partial Release. (a) The parties acknowledge that the Release Parcel is being encumbered by the Lien of the Mortgage solely by reason of the fact that the Release Parcel has not been legally subdivided and is not a separate tax lot and that it is the intent of the parties to release the Release Parcel upon the completion of the subdivision and Borrower's compliance with the provisions of this Section 10.24. Provided no Event of Default shall have occurred and remain uncured and provided Borrower desires to transfer title to the Release Parcel to an entity in which the REIT has at least a twenty percent (20%) direct or indirect ownership interest and whose day-to-day operations are controlled by the REIT. exists, Borrower shall have the right be permitted (in up to two (2) separate transactions) to obtain a release of one or more Individual Properties comprising in the lien aggregate up to ten percent (10%) of the Mortgage total outstanding Principal Indebtedness (and related Loan Documents) as to the Release Parcel for development by such entity consistent with other properties owned or operated by the REIT and, if necessary to satisfy the conditions set forth in this Section 10.24, a modification of the REA in connection with such release (the "REA AMENDMENT"“Partial Release”) upon satisfaction of the following conditions, which conditions precedentshall be determined by Lender in its sole and absolute discretion, unless otherwise specified below:
(ia) Borrower shall provide Lender not less than thirty (30) days notice (A) giving a brief narrative description prior to the date of the proposed use of any improvements to be constructed on the Release ParcelPartial Release, and (B) specifying the date (the "RELEASE DATE") on which the partial release is to occur provided, however, that Borrower may postpone the Release Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension;
(ii) Borrower shall deliver to Lender an opinion a notice setting forth (i) the date of counsel for Borrower that is standard in commercial lending transactions the Partial Release and subject only to customary qualifications, assumptions and exceptions opining, that if a Securitization (ii) the name of any portion the proposed Transferee;
(b) the prepayment of the Loan has occurredby Borrower of an amount equal to one hundred fifteen percent (115%) of the Allocated Loan Amount for each Individual Property being released, together with the REMIC Trust formed pursuant applicable Yield Maintenance Premium on the amount so prepaid;
(c) the payment by Borrower to Lender of an administrative fee equal to $15,000 per Individual Property being released;
(d) the loan to value ratio following the Partial Release shall be no greater than the lesser of (i) sixty-three and 70/100 percent (63.7%) and (ii) the loan to value ratio (inclusive of the Individual Property to be released) prior to such Securitization will not fail Partial Release, as determined by Lender in its reasonable discretion; provided that Borrower shall be permitted to maintain its status as a "real estate mortgage investment conduit" within prepay the meaning of Section 860D of Loan in part, subject to the Code as a result of the partial release pursuant to this Section 10.24 and Lender shall provide to Borrower's counsel applicable Yield Maintenance Premium based on such documents as Borrower's counsel shall reasonably request prepaid amount, in order to give such opinionsatisfy the requirement set forth in clause this clause (d);
(iiie) the In Place Debt Service Coverage Ratio following the Partial Release shall be no less than the greater of (i) 2.24 to 1.0 and (ii) the In Place Debt Service Coverage Ratio (inclusive of the Individual Property to be released) prior to such Partial Release, as determined by Lender in its reasonable discretion; provided that Borrower shall have delivered be permitted to Lender an Officer's Certificate certifying that prepay the partial release pursuant to this Section 10.24 does not violate any of the provisions of the Leases or the Operating AgreementsLoan in part, including, without limitation, provisions relating subject to the availability of parking at applicable Yield Maintenance Premium based on such prepaid amount, in order to satisfy the Propertyrequirement set forth in clause this clause (e);
(ivf) following the Partial Release, the weighted average lease term and credit profile of the remaining Property shall be similar to or better than that which existed prior to such Partial Release, as determined by Lender in its reasonable discretion;
(g) the payment by Borrower shall have delivered to Lender of all of Lender’s reasonable costs and expenses associated with the Partial Release, including but not limited to, Lender’s reasonable out-of-pocket legal fees and third party report fees;
(Ah) at Borrower's option, (x) an endorsement all appraisals obtained with respect to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably Partial Release and other documentation evidencing the Partial Release shall be acceptable to Lender in its reasonable discretion; and
(i) Plymouth Industrial REIT, Inc. shall remain the general partner of Plymouth Industrial OP, LP and licensed shall continue to practice in the State) indicating that each legal lot of the Control Borrower. Following any Partial Release Parcel has been legally subdivided for zoning lot purposes from the remainder of the Property pursuant to a zoning lot subdivision in accordance with applicable lawthis Article 14, (Bi) at Borrower's option, the Principal Indebtedness shall be reduced by the sum of (x1) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that the balance Allocated Loan Amount of the Individual Property separately conforms to and is in material compliance with all applicable Legal Requirements pertaining to zoning and the subdivision and constitutes one or more separate tax lot(s), released and (C2) an Officer's Certificate with supporting documentation indicating that either the Excess Release Fee and (yii) sufficient parking remains the scheduled monthly principal and interest payments shall be recalculated based on the remainder of the Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Property;
(v) To the extent that an amendment to the REA is necessary to satisfy any of the requirements of this Section 10.24, Borrower shall have delivered a copy of any REA Amendment to be executed on or prior to the Release Date which will provide for any of the reservations required by Section 10.24(a)(iv) and which will otherwise conform to the other requirements of this Section 10.24 and may contain cross-easements for the benefit of the Release Parcel and the remainder of the Property in respect of access, driveways, parking, utilities, drainage flows, storm and sanitary sewers, and other customary purposes. The REA Amendment will contain only those provisions which (x) are necessary or desirable to accommodate the proposed development described in thisreduced Principal Indebtedness.
Appears in 1 contract
Partial Release. Notwithstanding the foregoing, the Agent shall release the lien and security interest granted to or held by the Agent upon a particular Facility (and the Real Estate and other Collateral directly related thereto) upon the express condition that each and all of the following conditions precedent shall have been fulfilled or complied with to the satisfaction of the Agent in its sole discretion (a “Partial Release Transaction”):
(a) The parties acknowledge that a written request for the Partial Release Parcel Transaction (which is being encumbered revocable by the Lien of Borrower) is provided to the Mortgage solely Agent by reason of the fact date that the Release Parcel has not been legally subdivided and is not a separate tax lot less than sixty (60) days and that it is not more than ninety (90) days prior to the intent of desired date upon which the parties Borrower wishes to release effect the Partial Release Parcel upon Transaction, together with such information regarding the completion of requested Partial Release Transaction as the subdivision and Borrower's compliance with the provisions of this Section 10.24. Provided Agent may reasonably request in connection therewith;
(b) no Default or Event of Default shall have occurred and remain uncured be continuing;
(c) the Agent shall have received a Compliance Certificate demonstrating compliance (on a pro forma basis, both prior to and provided Borrower desires to transfer title after giving effect to the Release Parcel to an entity in which the REIT has at least a twenty percent (20%) direct or indirect ownership interest and whose day-to-day operations are controlled by the REIT. Borrower shall have the right to obtain a release consummation of the lien requested Partial Release Transaction) with all financial covenants (including, without limitation, the financial ratios described in Section 9.17 hereof) contained in this Agreement;
(d) the Borrower pays to the Agent all reasonable, out-of-pocket costs and expenses of the Mortgage (Agent, including the reasonable fees, charges and related Loan Documents) as to disbursements of counsel for the Release Parcel for development by such entity consistent with other properties owned or operated by the REIT andAgent, if necessary to satisfy the conditions set forth in this Section 10.24, a modification of the REA in connection with such release (the "REA AMENDMENT") upon satisfaction review, approval and consummation of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (A) giving a brief narrative description of the proposed use Partial Release Transaction and preparation of any improvements to be constructed on amendments, modifications or waivers of this Agreement and the other Financing Agreements in connection therewith (whether or not the Partial Release Parcel, and (B) specifying the date (the "RELEASE DATE") on which the partial release Transaction is to occur provided, however, that Borrower may postpone the Release Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extensionconsummated);
(iie) Borrower and Guarantor shall deliver have executed and delivered to Lender Agent an opinion of counsel for agreement in form and covenant reasonably acceptable to Agent reaffirming their respective obligations under the Financing Agreements; and
(f) the Borrower that is standard executes and delivers such agreements and instruments in commercial lending transactions favor of, and subject only to customary qualifications, assumptions and exceptions opining, that if a Securitization of any portion of the Loan has occurredprovides such further assurances to, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 10.24 and Lender shall provide to Borrower's counsel such documents as Borrower's counsel shall reasonably request Agent, in order to give such opinion;
(iii) Borrower shall have delivered to Lender an Officer's Certificate certifying that maintain, in the partial release pursuant to this Section 10.24 does not violate any Agent’s reasonable discretion, the first priority lien and security interest of the provisions Agent in the remainder of the Leases or Collateral (including the Operating Agreementsremainder of the Facilities and Real Estate), including, without limitation, provisions reasonable survey updates and title updates and endorsements for the added Facility, if any, if requested by the Agent, in its reasonable discretion, in connection with the consummation of the Partial Release Transaction. Upon satisfaction of all other conditions to a Partial Release Transaction in this Section 2.14, the term “Property” shall thereafter no longer include such released Property, the term “Facility” shall thereafter no longer include the Facility located on such released Property, and the term “Borrower” shall thereafter no longer include such released Borrower. Nothing in this Section 2.14 shall release any Borrower or Guarantor from any liability or obligation relating to the availability of parking at the Property;
(iv) Borrower shall have delivered to Lender (A) at Borrower's option, (x) an endorsement any environmental matters arising under the Financing Agreements with respect to the Title Insurance Policysuch released Property, and (y) an opinion of counsel (any liability under any Guaranty relating to such released Borrower or such released Property arising from counsel reasonably acceptable to Lender) events or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that each legal lot of the Release Parcel has been legally subdivided for zoning lot purposes from the remainder of the Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that the balance of the Property separately conforms to and is in material compliance with all applicable Legal Requirements pertaining to zoning and the subdivision and constitutes one or more separate tax lot(s), and (C) an Officer's Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Property;
(v) To the extent that an amendment to the REA is necessary to satisfy any of the requirements of this Section 10.24, Borrower shall have delivered a copy of any REA Amendment to be executed on or circumstances occurring prior to the such Partial Release Date which will provide for any of the reservations required by Section 10.24(a)(iv) and which will otherwise conform to the other requirements of this Section 10.24 and may contain cross-easements for the benefit of the Release Parcel and the remainder of the Property in respect of access, driveways, parking, utilities, drainage flows, storm and sanitary sewers, and other customary purposes. The REA Amendment will contain only those provisions which (x) are necessary or desirable to accommodate the proposed development described in thisTransaction.
Appears in 1 contract
Sources: Revolving Loan and Security Agreement (Strawberry Fields REIT, Inc.)
Partial Release. (a) The parties acknowledge Subject to the satisfaction (or waiver in writing by the Lenders) of the conditions precedent set forth in Section 6 hereof, the Required Lenders by consenting to the Amendments in Section 2 consent to the sale of the Released Assets pursuant to the SOA and the Agent’s release of its security interest in respect of the Released Assets from the Lien created in favor of the Agent.
(b) Pursuant to the direction of the Required Lenders and without independent investigation, upon the consummation of the SOA and subject to the satisfaction (or waiver in writing by the Lenders) of the conditions precedent set forth in Section 6 hereof, the Agent (for itself and for and on behalf of each of the Lenders):
i. acknowledges that the Release Parcel is being encumbered by Agent’s security interests, liens and rights in the Lien Released Assets have been automatically, irrevocably and unconditionally released, satisfied and discharged pursuant to clause (3) of the Mortgage solely by reason second paragraph of Section 4.1 and Section 12.12(a)(ii) of the fact Loan Agreement, following the consummation of the Renewables Intermediation Facility Transaction, and that the Release Parcel has Released Assets shall not been legally subdivided constitute Collateral under and is not a separate tax lot as defined in the Loan Documents after such time;
ii. authorizes Sidley Austin LLP as counsel to the Lenders to file the UCC-3 financing statement amendment releasing the Released Assets in the form attached hereto as Exhibit C without recourse to the Agent or the Lenders, and without representation and warranty therefrom;
iii. agrees to execute and deliver to the Borrower or its designees such other release documentation (if requested by Borrower, which request shall be in writing and shall certify that it is such request complies with this Section 3(b)(ii) of this Amendment No. 4, upon which the intent Agent may conclusively rely) releasing its liens and security interests in, to and on the Released Assets and the Agent further authorizes VRA to file the documents referred to above, in each case, without recourse to the Agent or the Lenders, and without representation and warranty therefrom; and
iv. agrees to take, at the sole cost and expense of the parties Loan Parties, all reasonable additional steps reasonably requested by VRA or the Loan Parties necessary to release its security interests and liens in, to and on any Released Asset and to terminate all filings, registrations, and recordings made with respect to such security interests and liens.
(c) Following the Release Parcel upon Effective Date (as defined in the completion of Renewables Intermediation Facility Documents) and the subdivision and Borrower's compliance with Fourth Amendment Effective Date, the provisions of this Section 10.24. Provided no Event of Default shall have occurred and remain uncured and provided Borrower desires to transfer title to the Release Parcel to an entity in which the REIT has at least a twenty percent (20%) direct or indirect ownership interest and whose day-to-day operations are controlled by the REIT. Borrower shall have the right to obtain a release of the lien of Released Assets shall be effective notwithstanding the Mortgage (and related Loan Documents) as to the Release Parcel for development by such entity consistent with other properties owned operation or operated by the REIT and, if necessary to satisfy the conditions set forth in this Section 10.24, a modification of the REA in connection with such release (the "REA AMENDMENT") upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (A) giving a brief narrative description of the proposed use of any improvements to be constructed on the Release Parcel, and (B) specifying the date (the "RELEASE DATE") on which the partial release is to occur provided, however, that Borrower may postpone the Release Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension;
(ii) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 10.24 and Lender shall provide to Borrower's counsel such documents as Borrower's counsel shall reasonably request in order to give such opinion;
(iii) Borrower shall have delivered to Lender an Officer's Certificate certifying that the partial release pursuant to this Section 10.24 does not violate any of the provisions of the Leases or the Operating Agreements, including, without limitation, provisions relating to the availability of parking at the Property;
(iv) Borrower shall have delivered to Lender (A) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that each legal lot of the Release Parcel has been legally subdivided for zoning lot purposes from the remainder of the Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrower's optionthe time, (x) an endorsement to order or method of attachment or perfection of security interests or the Title Insurance Policytime and order of filing of financing statements or any other liens held by the parties, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) whether under any uniform commercial code or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that the balance of the Property separately conforms to and is in material compliance with all any other applicable Legal Requirements pertaining to zoning and the subdivision and constitutes one or more separate tax lot(s), and (C) an Officer's Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Property;law.
(vd) To It is expressly acknowledged and agreed that this is a partial release and shall in no way release, affect or impair the extent that an amendment to undersigned’s rights, titles, interests and liens against any other interest and property other than the REA is necessary to satisfy any of the requirements of this Section 10.24, Borrower shall have delivered a copy of any REA Amendment to be executed on or prior to the Release Date which will provide for any of the reservations required by Section 10.24(a)(iv) and which will otherwise conform to the other requirements of this Section 10.24 and may contain cross-easements for the benefit of the Release Parcel and the remainder of the Property in respect of access, driveways, parking, utilities, drainage flows, storm and sanitary sewers, and other customary purposes. The REA Amendment will contain only those provisions which (x) are necessary or desirable to accommodate the proposed development described in thisReleased Assets.
Appears in 1 contract
Partial Release. (a) The parties acknowledge Pledged ▇▇▇▇▇▇'s Shares shall be released (and Lender shall release common stock of GTA Inc. prior to the release of partnership units of Lender unless otherwise directed by Borrower), and shall no longer constitute collateral security for the loan, at the following times and in accordance with the following provisions:
(i) One-third (1/3) of the Pledged Lender's Shares (or an equivalent dollar amount if held in cash or other securities) at such time as the Net Operating Income with respect to the Innisbrook Property shall have been, for each of the two (2) prior Fiscal Years, at least one hundred twenty percent (120%) of the Debt Service payable by Borrower for each such Fiscal Year.
(ii) An aggregate of two-thirds (2/3) of the Pledged ▇▇▇▇▇▇'s Shares (or an equivalent dollar amount if held in cash or other securities) at such time as the Net Operating Income with respect to the Innisbrook Property shall have been, for each of the two (2) prior Fiscal Years, at least one hundred and thirty percent (130%) of Debt Service payable by Borrower for each such Fiscal Year.
(iii) All of the Pledged Lender's Shares (or an equivalent dollar amount if held in cash or other securities) provided that the Release Parcel is being encumbered by Net Operating Income with respect to the Lien Innisbrook Property shall have been, for each of the Mortgage solely by reason two (2) prior Fiscal Years, one hundred and forty percent (140%) of the fact Debt Service payable by Borrower for each such Fiscal Year. This release of Pledged ▇▇▇▇▇▇'s Shares shall occur simultaneously with the circumstances triggering such an adjustment as described above, without the necessity for any further action on the part of Pledgor or Secured Party (other than the execution by Secured Party of any documentation of release required pursuant to the terms of the Pledge Agreement). Notwithstanding the foregoing, in no event shall any of the Pledged ▇▇▇▇▇▇'s Shares be released until prior to the expiration of ▇▇▇▇▇▇'s obligation to make disbursements of the Tranche II Loan, including without limitation, termination of such obligation at Borrower's election, in its sole discretion.
(b) The Additional Collateral shall be released, and shall no longer constitute collateral security for the Loans, on the date that the Release Parcel has not been legally subdivided and is not a separate tax lot and audited financial statements delivered pursuant to Section 6.10(c) demonstrate that it is the intent ratio of the parties Net Operating Income of the Innisbrook Property during such year (after required funding of the Capital Replacement Fund) to release Debt Service, is equal to or greater than 1.135 to 1.00 on a trailing twelve (12) months basis, and Borrower has provided an Officer's Certificate to Lender certifying to that effect (such date, the "Release Date"). In addition, on the Release Parcel upon Date the completion Payment and Performance Guaranty and the Golf Hosts Guaranty and all of the subdivision obligations thereunder shall terminate and Borrower's compliance with be of no further effect. Subject to the provisions terms of the last sentence of the succeeding subparagraph, Borrower shall have the continuing right to cause the Tamarron Premises to be released prior to the Release Date upon delivery to Lender of $250,000, which amount shall be held by Lender as Additional Collateral pursuant to the terms of this Section 10.24Agreement.
(c) Borrower shall be permitted to sell, transfer, encumber, pledge or otherwise dispose of any portion of the Additional Collateral subject to the requirements of this subparagraph. The proceeds of any Additional Collateraly shall be invested in Collateral, Additional Collateral or, to the extent not included within the Additional Collateral, the Innisbrook Premises or held by Lender as Additional Collateral pursuant to arrangements reasonably acceptable to Lender, all as more particularly set forth in the Security Agreement. Provided no Event of Default or Potential Event of Default then exists hereunder, ▇▇▇▇▇▇ shall have occurred execute any and remain uncured and provided Borrower desires all necessary release documents to transfer title to the Release Parcel to an entity in which the REIT has at least a twenty percent (20%) direct or indirect ownership interest and whose day-to-day operations are controlled by the REIT. Borrower shall have the right to obtain a release of the lien of the Mortgage (and related Loan Documents) as to the Release Parcel for development by such entity consistent with other properties owned or operated by the REIT and, if necessary to satisfy the conditions set forth in this Section 10.24, a modification of the REA in connection with evidence such release (the "REA AMENDMENT") upon satisfaction receipt by Lender of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (A) giving a brief narrative description of the proposed use of any improvements to be constructed on the Release Parcel, and (B) specifying the date (the "RELEASE DATE") on which the partial release is to occur provided, however, that Borrower may postpone the Release Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension;
(ii) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 10.24 and Lender shall provide to Borrower's counsel such documents as Borrower's counsel shall reasonably request in order to give such opinion;
(iii) Borrower shall have delivered to Lender an Officer's Certificate certifying that the partial release pursuant to this Section 10.24 does not violate any of the provisions of the Leases or the Operating Agreements, including, without limitation, provisions relating to the availability of parking at the Property;
(iv) Borrower shall have delivered to Lender that (Ai) at such property is being sold or, with respect to any Lender's Shares, pledged, to a third-party unrelated to Borrower or any affiliate of Borrower or any affiliate of any officer, director or employee of Borrower or any affiliate of Borrower's option, or if an affiliate, identifying the affiliate relationship, (xii) the transaction was undertaken in good faith and on an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that each legal lot of the Release Parcel has been legally subdivided for zoning lot purposes from the remainder of the Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrowerarm's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that the balance of the Property separately conforms to and is in material compliance with all applicable Legal Requirements pertaining to zoning and the subdivision and constitutes one or more separate tax lot(s), and (C) an Officer's Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Property;
(v) To the extent that an amendment to the REA is necessary to satisfy any of the requirements of this Section 10.24, Borrower shall have delivered a copy of any REA Amendment to be executed on or prior to the Release Date which will provide for any of the reservations required by Section 10.24(a)(iv) and which will otherwise conform to the other requirements of this Section 10.24 and may contain cross-easements for the benefit of the Release Parcel and the remainder of the Property in respect of access, driveways, parking, utilities, drainage flows, storm and sanitary sewers, and other customary purposes. The REA Amendment will contain only those provisions which (x) are necessary or desirable to accommodate the proposed development described in thislength
Appears in 1 contract
Sources: Loan Agreement (Gta-Ib, LLC)
Partial Release. In the event that Mortgagor wishes to sell the Mortgaged Property, and if the Adjacent Premises is not be sold simultaneously, and provided that neither Mortgagor nor the owner of the Adjacent Premises is in default in the performance of any of their respective obligations under this Mortgage or any other loan documents relating to this Mortgage or the mortgage on the Adjacent Premises, and (i) the leases of the Adjacent Premises have a remaining term of at least two (2) years, or (ii) if any leases have a remaining term of less than two (2) years, ▇▇▇▇▇▇▇ Industrial, LLC shall enter into a lease of such space for the remainder of such two (2) year period (the term of which shall commence upon expiration of such existing lease(s), unless they shall thereafter be extended or renewed), Mortgagee agrees to provide a release of mortgage as to the Mortgaged Property and to release all other security interests related to the Mortgaged Property for a principal payment in an amount equal to the greater of: (1) (a) The parties acknowledge 51.36% of the outstanding principal balance of the Loan, if third party tenants have remaining term of at least two (2) years, or (b) 56.49% of the outstanding principal balance of the Loan, if a lease from ▇▇▇▇▇▇▇ Industrial, LLC has been required; or (2) an amount sufficient that the Release Parcel Adjacent Premises is being encumbered by in compliance with the Lien financial covenants set forth in Section 10 of the Mortgage solely by reason of the fact that the Release Parcel has not been legally subdivided and is not a separate tax lot and that it is the intent of the parties to release the Release Parcel upon the completion of the subdivision and Borrower's compliance with the provisions of this Section 10.24. Provided no Event of Default shall have occurred and remain uncured and provided Borrower desires to transfer title respect to the Release Parcel to an entity in which the REIT has at least a twenty percent (20%) direct or indirect ownership interest and whose day-to-day operations are controlled by the REIT. Borrower shall have the right to obtain a release of the lien of the Mortgage (and related Loan Documents) as to the Release Parcel for development by such entity consistent Adjacent Premises, together with other properties owned or operated by the REIT and, if necessary to satisfy the conditions set forth in this Section 10.24, a modification of the REA in connection with such release (the "REA AMENDMENT") upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (A) giving a brief narrative description of the proposed use payment of any improvements to prepayment and/or swap breakage fee which may be constructed on the Release Parcel, and (B) specifying the date (the "RELEASE DATE") on which the partial release is to occur provided, however, that Borrower may postpone the Release Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension;
(ii) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code due as a result of such prepayment. If required by Mortgagee, an updated appraisal to confirm compliance with the partial loan to value covenant may be required. Upon release pursuant to this Section 10.24 and Lender shall provide to Borrower's counsel such documents as Borrower's counsel shall reasonably request in order to give such opinion;
(iii) Borrower shall have delivered to Lender an Officer's Certificate certifying that the partial release pursuant to this Section 10.24 does not violate any of the provisions of Mortgaged Property, Mortgagor shall be automatically released from all obligations under the Leases Note and every other document or the Operating Agreements, including, without limitation, provisions instrument relating to the availability Loan except for any obligations which expressly survive the payment of parking at the Property;
(iv) Borrower Loan; and ▇▇▇▇▇▇▇ Industrial, LLC shall have delivered to Lender (A) at Borrower's option, (x) an endorsement be released from all obligations under its Non-Recourse Guaranty of the Loan as they pertain to the Title Insurance PolicyMortgaged Property, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in except for any obligations which expressly survive the State) indicating that each legal lot payment of the Release Parcel has been legally subdivided for zoning lot purposes from the remainder Loan. The liability of the Property pursuant to a zoning lot subdivision Mortgagor shall remain in accordance with applicable law, (B) at Borrower's option, (x) an endorsement full force and effect as to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender remaining balance due and licensed to practice in the State) indicating that the balance of the Property separately conforms to and is in material compliance with all applicable Legal Requirements pertaining to zoning and the subdivision and constitutes one or more separate tax lot(s), and (C) an Officer's Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available obligations as they pertain to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Property;
(v) To the extent that an amendment to the REA is necessary to satisfy any of the requirements of this Section 10.24, Borrower shall have delivered a copy of any REA Amendment to be executed on or prior to the Release Date which will provide for any of the reservations required by Section 10.24(a)(iv) and which will otherwise conform to the other requirements of this Section 10.24 and may contain cross-easements for the benefit of the Release Parcel and the remainder of the Property in respect of access, driveways, parking, utilities, drainage flows, storm and sanitary sewers, and other customary purposes. The REA Amendment will contain only those provisions which (x) are necessary or desirable to accommodate the proposed development described in thisAdjacent Premises.
Appears in 1 contract
Partial Release. Upon not less than sixty (a60) The parties acknowledge that the Release Parcel is being encumbered by days prior written notice from an Individual Borrower or Gatlinburg Obligor, Lender shall release from the Lien of the Mortgage solely Collateral Documents (a “Release”) an Individual Property in the Security Pool owned by reason such Individual Borrower or Gatlinburg Obligor (“Release Property”), upon the satisfaction (as determined by Lender in its sole discretion) of all of the fact that following terms and conditions:
(a) At the Release Parcel has not been legally subdivided and is not a separate tax lot and that it is the intent time of the parties to release request by the Release Parcel upon applicable Individual Borrower or Gatlinburg Obligor and the time of the proposed Release, there shall be no Event of Default under the Loan Documents, and there shall exist no condition or state of facts which with the passage of time or the giving of notice or both, would constitute an Event of Default under the Loan Documents;
(b) Any such request may be made no sooner than the later of (i) nine (9) months after the Closing or (ii) six (6) months after the completion of the subdivision most recent Release or Substitution (as defined below), and Borrower's compliance with such written request must be received no later than twelve (12) months prior to the provisions maturity date of this Section 10.24. Provided the Loans;
(c) Each Release Property shall consist of an Individual Property, and each Release shall involve no Event of Default more than one (1) Individual Property;
(d) For each Release Property, the applicable Individual Borrower or Gatlinburg Obligor shall have occurred and remain uncured and provided Borrower desires paid to transfer title Lender the applicable “Release Price”, which, (1) with respect to each of the Individual Properties in the Security Pool (but excluding the Gatlinburg Individual Property), shall be equal to (i) one hundred ten percent (110%) of the then unpaid principal balance of the Individual Loan Amount applicable to the Release Parcel Property (such amount shall herein be called the “Principal Payment Amount”), plus (ii) the applicable Prepayment Premium (based on the Principal Payment Amount), plus (iii) all accrued interest with respect to an entity the Individual Loan applicable to the Release Property and all accrued and unpaid charges with respect to the Loans, and (2) with respect to the Gatlinburg Individual Property, shall be equal to (i) Eleven Million and No/100 Dollars ($11,000,000.00), plus (ii) all accrued and unpaid charges with respect to the Loans (the Release Price for the Gatlinburg Individual Property is hereinafter referred to as the “Gatlinburg Release Price”);
(e) The Principal Payment Amount shall be applied to pay in full the principal balance due with respect to the Individual Loan applicable to the Release Property, and Lender, in its discretion, shall apply the portion of the Principal Payment Amount which is in excess of the REIT has then outstanding principal balance of the Individual Loan applicable to the Release Property to one of more of the other Individual Loans applicable to the other Individual Properties;
(f) The Gatlinburg Release Price shall be applied to each of the Individual Loans on a pro rata basis with respect to the principal amount then outstanding on each of the Individual Loans.
(g) Lender shall have determined that, following the Release, the Debt Service Coverage Ratio calculated with respect to the remainder of the Security Pool (excluding the Release Property) shall be at least a twenty percent equal to 1.75 to 1.00. In the event that the Debt Service Coverage Ratio calculated with respect to the remainder of the Security Pool (20%excluding the Release Property) direct or indirect ownership interest is less than the required level, then Borrowers and whose day-to-day operations are controlled by the REIT. Borrower Gatlinburg Obligor shall have the right right, subject to obtain a release payment of the lien applicable Prepayment Premium, to pay Lender the amount necessary to increase the Debt Service Coverage Ratio calculated with respect to the remainder of the Mortgage Security Pool (and related Loan Documentsexcluding the Release Property) as to the required level;
(h) Lender shall have determined that following the Release, the Loan to Value Ratio calculated with respect to the remainder of the Security Pool (excluding the Release Parcel for development by such entity consistent Property) shall not exceed fifty percent (50%). In the event the Loan to Value Ratio with other properties owned or operated by respect to the REIT andremainder of the Security Pool (excluding the Release Property) exceeds the required level, if then Borrowers and Gatlinburg Obligor shall have the right, subject to payment of the Prepayment Premium, to pay Lender the amount necessary to satisfy reduce the conditions set forth in this Section 10.24, a modification Loan to Value Ratio calculated with respect to the remainder of the REA in connection with such release Security Pool (excluding the "REA AMENDMENT"Release Property) upon satisfaction of to the following conditions precedent:required level;
(i) At the time the applicable Individual Borrower or Gatlinburg Obligor makes its written request to Lender for a Release, such Individual Borrower or Gatlinburg Obligor shall provide pay to Lender a non-refundable administrative fee of $25,000 (the “Release Administrative Fee”). The Release Administrative Fee shall be deemed earned by Lender upon its receipt by Lender and shall not less than be applied to the Principal Payment Amount, the Prepayment Premium, or any other amounts due under the Loan Documents;
(j) Whether or not the Release is actually consummated, Borrowers and Gatlinburg Obligor shall pay to Lender all escrow, closing and recording charges and taxes including, but not limited to, the cost of preparing and delivering releases, any re-conveyance documentation and modifications of the Loan Documents, including legal fees and costs, the cost of any title insurance endorsements that Lender may require, any expenses incurred by Lender in connection with the Release, and any sums then due and payable under the Loan Documents; and
(k) At least thirty percent (30%) days notice (A) giving a brief narrative description of the proposed use of any improvements to be constructed on total EBITDA (defined below) from the remaining Property (excluding the Release ParcelProperty), as calculated by Lender, shall come from any combination of the following Individual Properties: (i) Eagle Brook, (ii) Ruffled Feathers, (iii) ▇▇▇▇▇ Ranch, (iv) Superstition Springs, (v) Foothills, (vi) Ancala, and (Bvii) specifying the date Arrowhead (the "RELEASE DATE") on which the partial release is to occur provided, however, that Borrower may postpone the Release Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extensionCO);
(iil) Borrower Lender shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opininghave determined, that if a Securitization of any portion of following the Loan has occurredRelease, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 10.24 and Lender shall provide to Borrower's counsel such documents as Borrower's counsel shall reasonably request in order to give such opinion;
(iii) Borrower shall have delivered to Lender an Officer's Certificate certifying that the partial release pursuant to this Section 10.24 does not violate any of the provisions of the Leases or the Operating Agreements, including, without limitation, provisions relating to the availability of parking at the Property;
(iv) Borrower shall have delivered to Lender (A) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that each legal lot of the Release Parcel has been legally subdivided for zoning lot purposes from the remainder of the Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that the aggregate unpaid principal balance of the Property separately conforms to and is in material compliance with all applicable Legal Requirements pertaining to zoning and the subdivision and constitutes one or more separate tax lot(s), and Loans shall be greater than fifty-five percent (C55%) an Officer's Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment original aggregate principal amount of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Property;Loans; and
(vm) To the extent that an amendment to the REA is necessary to satisfy any of the requirements of this Section 10.24, Borrower Such other terms and conditions as Lender shall have delivered a copy of any REA Amendment to be executed on or prior to the Release Date which will provide for any of the reservations required by Section 10.24(a)(iv) and which will otherwise conform to the other requirements of this Section 10.24 and may contain cross-easements for the benefit of the Release Parcel and the remainder of the Property in respect of access, driveways, parking, utilities, drainage flows, storm and sanitary sewers, and other customary purposes. The REA Amendment will contain only those provisions which (x) are necessary or desirable to accommodate the proposed development described in thisreasonably require.
Appears in 1 contract
Sources: Collateral Loan Agreement (CNL Lifestyle Properties Inc)
Partial Release. (a) The parties acknowledge that In the event Borrowers desire to sell a Partial Release Parcel is being encumbered by and in connection therewith release such Partial Release Parcel from the Lien of the Mortgage solely by reason of the fact that the Release Parcel has not been legally subdivided and is not a separate tax lot and that it is the intent of the parties to release the Release Parcel upon the completion of the subdivision and Borrower's compliance with the provisions of this Section 10.24. Provided no Event of Default shall have occurred and remain uncured and provided Borrower desires to transfer title to the Release Parcel to an entity in which the REIT has at least a twenty percent (20%) direct or indirect ownership interest and whose day-to-day operations are controlled by the REIT. Borrower shall have the right to obtain a release of the lien of the Mortgage (and related Loan Documents) as to the Release Parcel for development by such entity consistent with other properties owned or operated by the REIT and, if necessary to satisfy the conditions set forth in this Section 10.24each, a modification of the REA in connection with such release (the "REA AMENDMENT") “Partial Release”), then, upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice days’ prior written request, Administrative Agent (Aon behalf of Lenders) giving a brief narrative description will release the lien of the Mortgage against such Partial Release Parcel upon satisfaction of each of the following conditions:
(a) As of the date of ▇▇▇▇▇▇▇▇▇’ request for release and as of the date of the proposed use release (the “Proposed Release Date”), no Default or Event of Default under any improvements of the Loan Documents has occurred and is then continuing and Borrowers are not under a Cash Sweep Period;
(b) Borrowers shall have delivered to Administrative Agent and Lenders with respect to a Partial Release, (i) a copy of the sale contract and all amendments thereto, (ii) a copy of the proposed closing statement to be constructed on executed by ▇▇▇▇▇▇▇▇▇ and the Release Parcelpurchaser(s), and (Biii) specifying such information regarding the date (the "RELEASE DATE"purchaser(s) on which the partial release is to occur provided, however, that Borrower as Administrative Agent may postpone the Release Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extensionreasonably request;
(iic) Borrower Administrative Agent shall deliver have received on the Proposed Release Date a prepayment of the Term Loans in the amount equal to Lender an opinion one hundred five percent (105%) of counsel for Borrower that is standard in commercial lending transactions and subject only the Allocated Amount attributable to customary qualificationssuch Partial Release Parcel; provided, assumptions and exceptions opiningfurther, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code as a result of the partial release payment pursuant to this Section 10.24 2.7(c) shall be treated as a partial prepayment under Section 2.4 in which case the applicable proportionate amount of the Prepayment Premium shall be due and Lender shall provide to Borrower's counsel such documents as Borrower's counsel shall reasonably request in order to give such opinionpayable;
(iiid) Borrower shall deliver, together with such request for the Partial Release, a pro forma Compliance Certificate showing that both before and after giving effect to such Partial Release (i) the Debt Yield (calculated for the most recently ended twelve (12) month period prior to the Proposed Release Date on a pro forma basis) shall be at least twelve percent (12.00%) and (ii) the Debt Service Coverage Ratio (calculated for the most recently ended twelve (12) month period prior to the Proposed Release Date on a pro forma basis) is not less than 1.35 to 1.00, provided, that for purposes of this clause (d), Consolidated Total Debt Service shall be calculated to exclude any Swap Agreement Benefit Amount.
(e) The sale shall be to a bona fide purchaser that is not an Affiliate of a Borrower in a bona fide cash sale transaction for not less than fair market value.
(f) ▇▇▇▇▇▇▇▇▇ and Guarantor shall have executed and delivered to Lender an Officer's Certificate certifying that Administrative Agent such reaffirmations and amendments to the partial release pursuant to Loan Documents as Administrative Agent may reasonably require in connection with such release; and
(g) No more than five (5) Healthcare Facilities (taken in the aggregate with all other Partial Releases hereunder) shall be released during the term of this Section 10.24 does not violate any Agreement (without Administrative Agent’s prior written consent in its discretion).
(h) Upon receipt of the provisions of the Leases or the Operating Agreements, including, without limitation, provisions relating to the availability of parking at the Property;
amounts set forth in clause (ivc) Borrower shall have delivered to Lender (A) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that each legal lot of the Release Parcel has been legally subdivided for zoning lot purposes from the remainder of the Property pursuant to a zoning lot subdivision in accordance with applicable law, (B) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that the balance of the Property separately conforms to and is in material compliance with all applicable Legal Requirements pertaining to zoning and the subdivision and constitutes one or more separate tax lot(s), and (C) an Officer's Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Property;
(v) To the extent that an amendment to the REA is necessary to satisfy any of the requirements of this Section 10.242.7, Borrower the Administrative Agent shall have delivered a copy of any REA Amendment the right to be executed on or prior proportionately reduce the Term Loan Commitment to fund the Release Date which will provide for any Delayed Draw Loans under Section 2.1(b) hereof by one hundred five percent (105%) of the reservations required by Section 10.24(a)(iv) and which will otherwise conform to the other requirements of this Section 10.24 and may contain cross-easements for the benefit unfunded portion of the Delayed Draw Loans allocated to such Partial Release Parcel and the remainder of the Property in respect of access, driveways, parking, utilities, drainage flows, storm and sanitary sewers, and other customary purposes. The REA Amendment will contain only those provisions which (x) are necessary or desirable to accommodate the proposed development described in thisso released as set forth on Schedule 2.7.
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Partial Release. (a) The parties acknowledge that Provided the Release Parcel is being encumbered Prepayment Lockout Period has expired for the Loan selected by the Lien Company for prepayment, Company shall have the right, exercisable from time to time, to release all (but not less than all) of a Project from the lien of the Mortgage solely by reason encumbering such Project (such Project is a “Release Property”) upon the following terms and conditions:
(i) Company shall pay (1) one hundred ten percent (110%) (which percentage shall be adjusted, up or down, in the event that there are at least three (3) Project Loans entered into pursuant to this Agreement, such that the amount required to be prepaid will be the amount necessary to cause the Projects remaining after release of the fact that Release Property to satisfy the Loan to Value Ratio set forth in clause (iv) below) of the Allocated Loan Amount for the Release Parcel has not been legally subdivided Property, (2) the required Prepayment Fee and is not (3) a separate tax lot and that it is the intent of the parties processing fee equal to release the Release Parcel upon the completion of the subdivision and Borrower's compliance with the provisions of this Section 10.24. Provided $10,000;
(ii) no Event of Default shall have occurred and remain uncured and provided Borrower desires to transfer title to the Release Parcel to an entity in which the REIT has at least a twenty percent (20%) direct or indirect ownership interest and whose day-to-day operations are controlled by the REIT. Borrower shall have the right to obtain a release of the lien of the Mortgage (and related Loan Documents) as to the Release Parcel for development by such entity consistent with other properties owned or operated by the REIT and, if necessary to satisfy the conditions set forth in this Section 10.24, a modification of the REA in connection with such release (the "REA AMENDMENT") upon satisfaction of the following conditions precedent:
(i) Borrower shall provide Lender not less than thirty (30) days notice (A) giving a brief narrative description of the proposed use of any improvements to be constructed on the Release Parcel, and (B) specifying the date (the "RELEASE DATE") on which the partial release is to occur provided, however, that Borrower may postpone the Release Date from time to time as long as the extended date is at least ten (10) Business Days after Notice of such extension;
(ii) Borrower shall deliver to Lender an opinion of counsel for Borrower that is standard in commercial lending transactions and subject only to customary qualifications, assumptions and exceptions opining, that if a Securitization of any portion of the Loan has occurred, the REMIC Trust formed pursuant to such Securitization will not fail to maintain its status as a "real estate mortgage investment conduit" within the meaning of Section 860D of the Code as a result of the partial release pursuant to this Section 10.24 and Lender shall provide to Borrower's counsel such documents as Borrower's counsel shall reasonably request in order to give such opinioncontinuing;
(iii) Borrower shall have delivered giving effect to Lender an Officer's Certificate certifying that the partial release pursuant to this Section 10.24 does not violate any potential release, the Debt Service Coverage Ratio for the immediately succeeding twelve (12) month period of the provisions balance of the Leases or Project remaining after the Operating Agreements, including, without limitation, provisions relating release of the Release Property (the “Remaining Property”) shall be no less than 1.60 to the availability of parking at the Property1;
(iv) Borrower shall have delivered to Lender (A) at Borrower's option, (x) an endorsement giving effect to the Title Insurance Policypotential release, (y) an opinion of counsel (from counsel reasonably acceptable the Loan to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that each legal lot Value Ratio of the Release Parcel has been legally subdivided for zoning lot purposes from the remainder of the Remaining Property pursuant to a zoning lot subdivision shall not be greater than fifty-five percent (55%) as determined by Lender in accordance with applicable law, (B) at Borrower's option, (x) an endorsement to the Title Insurance Policy, (y) an opinion of counsel (from counsel reasonably acceptable to Lender) or (z) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) indicating that the balance of the Property separately conforms to and is in material compliance with all applicable Legal Requirements pertaining to zoning and the subdivision and constitutes one or more separate tax lot(s), and (C) an Officer's Certificate with supporting documentation indicating that either (y) sufficient parking remains on the remainder of the Property to comply with all Leases of such remainder and with all Operating Agreements and which is adequate for the proper use and enjoyment of the balance of the Property or (z) reservations of parking (in favor of such remainder) in the Release Parcel are sufficient (when added to parking otherwise available to the remainder) to comply with all Leases of such remainder and with all Operating Agreements and which are adequate for the proper use and enjoyment of the remainder of the Propertyits reasonable discretion;
(v) for the Remaining Property, the rent rolls, tenants, and terms of the leases must be satisfactory to Lender in its sole discretion;
(vi) simultaneous with the release of the Release Property, Company shall transfer and assign 100% of the Company’s interests in the entity that owns the Release Property to an entity that is not a Subsidiary of Company; and
(vii) Company or the Project Borrower shall pay all costs and expenses incurred by Lender in connection with any release permitted by this Section 3.4, including title insurance premiums, documentation costs and reasonable attorneys’ fees. To the extent that an amendment to the REA is necessary to satisfy any of the requirements of Sections 3.3 and 3.4, Company may, or may cause the applicable Project Borrower(s) to, make a partial prepayment of one or more of the Loans, as so elected by Company and so long as any such Loan is not then subject to a Prepayment Lockout Period, together with the applicable portion of the Prepayment Fee then due and payable, in an amount not in excess of the amount required to satisfy the requirements set forth in Section 3.3 or 3.4, as applicable. No release of a Release Property or a Replaced Property shall release the Company or the applicable Project Borrower from its obligations under the Loan Documents or this Section 10.24, Borrower shall have delivered a copy of any REA Amendment Agreement with respect to be executed on events arising or occurring prior to the Release Date which will provide for date of any release permitted pursuant to Section 3.3 or 3.4 above. Upon satisfaction of the reservations required by Section 10.24(a)(iv) foregoing conditions Lender shall deliver to Company and which will otherwise conform the applicable Project Borrowers the applicable Project Note marked “Cancelled” and “Paid in Full” to the extent the same has been paid in full, together with sufficient releases of lien, satisfactions or reconveyances of mortgages, UCC-3 Terminations and such other requirements of this Section 10.24 documents as may be required to effectively release the Released Property from the Project Loan Documents and may contain cross-easements for the benefit of the Release Parcel and the remainder of the Property in respect of access, driveways, parking, utilities, drainage flows, storm and sanitary sewers, sufficient UCC-3 Terminations and other customary purposes. The REA Amendment will contain only those provisions release documents to terminate the pledges by Company in such Project Borrowers (and any applicable Subsidiaries of Company which (x) are necessary or desirable to accommodate the proposed development described own interests in thissuch Project Borrowers).
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Sources: Loan Facility Agreement (Hines Real Estate Investment Trust Inc)