Partial Release. After the First Open Defeasance Date and prior to the First Open Payment Date, and provided no Event of Default exists, Borrower may from time to time obtain a partial release (a “Partial Release”) from the lien of the Mortgage and the Loan Documents of up to two of the individual Mortgaged Properties listed on Schedule 2.17 hereto (each such individual Mortgaged Property to be released, a “Partial Release Property”), provided that all of the following conditions precedent have been satisfied with respect to any such Partial Release of any such Partial Release Property: (a) No Partial Release of a Partial Release Property will be permitted until after the First Open Defeasance Date or if any Event of Default has occurred and is continuing. No Partial Release of the Partial Release Property will be permitted on or after the First Open Payment Date. No more than two Partial Release Properties may be released during the term of the Loan. (b) No Partial Release of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the Debt Service Coverage Ratio for the remainder of the Mortgaged Property (i.e., exclusive of any income from the Partial Release Property) is and shall continue to be equal to or greater than the greater of (i) the Debt Service Coverage Ratio for the Mortgaged Property calculated immediately prior to the Partial Release (i.e., inclusive of the income from the Partial Release Property), and (ii) 1.30:1.00. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount. No Partial Defeasance, nor any increase in any Partial Defeasance Amount under this paragraph (b) or paragraphs (c) below, shall affect the allocated loan amounts for the remaining Mortgaged Property as set forth on Schedule 2.17. (c) No Partial Release of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the value of the remainder of the Mortgaged Property (as determined by then-current Appraisals prepared by Appraisers approved by Lender, the fees and expenses of which shall be paid by Borrower) is sufficient to satisfy a loan-to-value ratio (based on the outstanding principal balance of the Loan immediately prior to the Partial Release, less the allocated loan amount for the Partial Release Property) which is the lesser of (i) 75% and (ii) the loan-to-value ratio for the Mortgaged Property (inclusive of the Partial Release Property, and based on the outstanding principal balance of the Loan immediately prior to the Partial Release) calculated immediately prior to the Partial Release. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount. (d) The Partial Release shall be allowed only in connection with a bona fide all-cash sale of the Partial Release Parcel to an unaffiliated third party on arms-length terms and conditions, and upon closing of such sale (and thereafter) shall not be owned, purchased or acquired by Borrower or any Affiliate of Borrower. (e) Borrower will on the date of the Partial Release (the “Partial Release Date”) complete a Partial Defeasance, pursuant to Section 2.7 hereof, of a portion of the Loan (the “Partial Defeasance Amount” for such Partial Release Property) equal to 125% of the allocated loan amount for the Partial Release Property set forth on Schedule 2.17 hereto; provided, that if Borrower elects in connection with a Partial Defeasance of a Partial Release Property to increase the Partial Defeasance Amount for such Partial Release Property pursuant to the provisions of paragraphs (b) and/or (c) above, the Partial Defeasance Amount for such Partial Release Property shall be such higher amount for purposes of such Partial Defeasance. (f) Borrower will execute (and Guarantor will consent in writing thereto and reaffirm their obligations under the Loan Documents to which they are a party notwithstanding the Partial Release) and deliver all such amendments to the Loan Documents and other instruments or documents as may be required by Lender (using commercial standards customarily applied with respect to mortgage loans such as the Loan) in order to continue to fully protect Lender’s lien and security interest in the remainder of the Mortgaged Property. (g) Borrower will cause the Master Homesite Lease(s) to be amended to exclude the Partial Release Property pursuant to documentation reasonably satisfactory to Lender. (h) Borrower, at its sole cost and expense, shall obtain endorsements to Lender’s loan policy of title insurance satisfactory in form and content to Lender, which endorsements will (a) affirmatively evidence the continued validity of Lender’s first lien position created by the Loan Documents through the date of recordation of the partial release of the Partial Release Property, and (b) insure that the lien created by the Loan Documents remains a valid first lien on the remainder of the Mortgaged Property. (i) Borrower shall pay for the costs of preparing and recording partial releases, UCC-3 releases, and any loan modification documents, easements, declarations, and/or restrictive covenants required by Lender, Lender’s reasonable attorneys’ fees and costs, all survey charges and costs, all title premiums and costs, documentary stamps incurred in connection with the release of the Partial Release Property in accordance with the requirements contained herein, and all other reasonable out-of-pocket costs, fees, and expenses incurred by Lender in connection with the requested release of the Partial Release Property. (j) Borrower shall have provided Lender with a Rating Confirmation with respect to the Partial Release. (k) Borrower shall pay Lender’s reasonable costs and expenses in connection with the Partial Release, as set forth below. Borrower shall pay or reimburse Lender for all reasonable costs and expenses incurred by Lender in connection with such request for a Partial Release, including, but not limited to, the preparation, negotiation and review of any and all materials required to be provided in connection therewith (including Lender’s reasonable attorneys’ fees and expenses).
Appears in 10 contracts
Sources: Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc), Loan Agreement (Affordable Residential Communities Inc)
Partial Release. After the First Open Defeasance Date and prior to the First Open Payment Date, and provided no Event of Default exists, Borrower may from shall be entitled at any time to time obtain a partial release (a “Partial Release”) from of the lien of the Mortgage and the Loan Documents this Deed of up to two of the individual Mortgaged Properties listed on Schedule 2.17 hereto Trust (but not any other Related Mortgage) only if each such individual Mortgaged Property to be released, a “Partial Release Property”), provided that all of the following conditions precedent have has been satisfied with respect to any such Partial Release of any such Partial Release Propertysatisfied:
(a) No Partial Release A release under this Section 6.15 and Section 5.15 of a Partial Release Property will be permitted until after the First Open Defeasance Date or if any Event of Default has occurred and is continuing. No Partial Release of the Partial Release Property will be permitted on or after the First Open Payment Date. No each Related Mortgage may not take place more than two Partial Release Properties may be released three (3) times (in the aggregate) during the term of this Loan and the Loan.Related Loans;
(b) No Partial Release more than a total of three (3) of the Partial Release Parcel will Mortgaged Properties may be permitted unless Borrower establishes to Lender’s satisfaction that released under this Section 6.15 and Section 5.15 of each Related Mortgage, and no more than a total of three (3) of the Mortgaged Properties may be released under (i) this Section 6.15 and Section 5.15 of each Related Mortgage, and (ii) Section 6.16 of this Deed of Trust and Section 5.16 of each Related Mortgage;
(c) After the proposed release, the Debt Service Coverage Ratio - Remaining Properties for the remainder of twelve (12) months prior to the Mortgaged Property release and projected twelve (i.e., exclusive of any income from 12) months following the Partial Release Property) is and shall continue to release must be at least equal to or greater than the greater of (ix) 1.65, or (y) the current Debt Service Coverage Ratio - Mortgaged Properties calculated for the Mortgaged Property twelve (12) month period prior to the release;
(d) After the proposed release, the loan to value ratio of the remaining Related Loans must be less than or equal to 60% as calculated immediately prior to the Partial Release (i.e., inclusive of the income from the Partial Release Property), release based upon appraisals furnished to Lender in form and (ii) 1.30:1.00. If the foregoing condition would not be satisfied substance reasonably satisfactory to Lender and prepared by defeasance of the Partial Defeasance Amount indicated in subparagraph an MAI appraiser approved by Lender at Borrower's cost or as determined by Lender;
(e) below, Borrower may by written notice to shall pay Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion reduction of the Partial Defeasance of such larger Partial Defeasance Amount. No Partial Defeasance, nor any increase in any Partial Defeasance Amount under this paragraph (b) or paragraphs (c) below, shall affect the allocated loan amounts for the remaining Mortgaged Property as set forth on Schedule 2.17.
(c) No Partial Release of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the value of the remainder of the Mortgaged Property (as determined by then-current Appraisals prepared by Appraisers approved by Lender, the fees and expenses of which shall be paid by Borrower) is sufficient to satisfy a loan-to-value ratio (based on the outstanding principal balance of the Loan immediately prior a sum equal to 115% of the Partial Release, less the allocated loan amount for the Partial Release Property) which is the lesser of (i) 75% and (ii) the loan-to-value ratio original Allocated Loan Amount for the Mortgaged Property (inclusive of the Partial Release Property, and based on the outstanding principal balance of the Loan immediately prior to the Partial Release) calculated immediately prior to the Partial Release. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated plus Borrower shall in subparagraph (e) below, Borrower may by written notice addition pay to Lender given not less than ten (10) days prior a "prepayment premium" applied to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result said sum and computed in the foregoing condition being satisfied upon completion of manner specified in the Partial Defeasance of such larger Partial Defeasance Amount.
(d) The Partial Release shall be allowed only in connection with a bona fide all-cash sale of the Partial Release Parcel to an unaffiliated third party on arms-length terms and conditions, and upon closing of such sale (and thereafter) shall not be owned, purchased or acquired by Borrower or any Affiliate of Borrower.
(e) Borrower will on the date of the Partial Release (the “Partial Release Date”) complete a Partial Defeasance, pursuant to Section 2.7 hereof, of a portion of the Loan (the “Partial Defeasance Amount” for such Partial Release Property) equal to 125% of the allocated loan amount for the Partial Release Property set forth on Schedule 2.17 hereto; provided, that if Borrower elects in connection with a Partial Defeasance of a Partial Release Property to increase the Partial Defeasance Amount for such Partial Release Property pursuant to the provisions of paragraphs (b) and/or (c) above, the Partial Defeasance Amount for such Partial Release Property shall be such higher amount for purposes of such Partial Defeasance.Note;
(f) Borrower will execute (and Guarantor will consent in writing thereto and reaffirm their obligations under Neither the Loan Documents to which they are a party notwithstanding nor the Partial Release) and deliver all Related Loans shall be in Default at the time such amendments to request for release is made through the Loan Documents and other instruments or documents as may be required by Lender (using commercial standards customarily applied with respect to mortgage loans such as the Loan) in order to continue to fully protect Lender’s lien and security interest in the remainder completion of the Mortgaged Property.release;
(g) Borrower will cause must pay all of Lender's costs associated with the Master Homesite Lease(s) partial release plus a fee of .5% of the original Allocated Loan Amount for the Mortgaged Property to be amended released;
(h) The original Borrower named in the Loan Documents and the Related Loan Documents continues to exclude be the Partial Release Property pursuant owner of the Remaining Mortgaged Properties; and
(i) All documents relating to documentation reasonably the release shall be in form and substance satisfactory to Lender.
(h) Borrower, at its sole cost and expense, shall obtain endorsements to Lender’s loan policy of title insurance satisfactory in form and content to Lender, which endorsements will (a) affirmatively evidence the continued validity of Lender’s first lien position created by the Loan Documents through the date of recordation of the partial release of the Partial Release Property, and (b) insure that the lien created by the Loan Documents remains a valid first lien on the remainder of the Mortgaged Property.
(i) Borrower shall pay for the costs of preparing and recording partial releases, UCC-3 releases, and any loan modification documents, easements, declarations, and/or restrictive covenants required by Lender, Lender’s reasonable attorneys’ fees and costs, all survey charges and costs, all title premiums and costs, documentary stamps incurred in connection with the release of the Partial Release Property in accordance with the requirements contained herein, and all other reasonable out-of-pocket costs, fees, and expenses incurred by Lender in connection with the requested release of the Partial Release Property.
(j) Borrower shall have provided Lender with a Rating Confirmation with respect to the Partial Release.
(k) Borrower shall pay Lender’s reasonable costs and expenses in connection with the Partial Release, as set forth below. Borrower shall pay or reimburse Lender for all reasonable costs and expenses incurred by Lender in connection with such request for a Partial Release, including, but not limited to, the preparation, negotiation and review of any and all materials required to be provided in connection therewith (including Lender’s reasonable attorneys’ fees and expenses).
Appears in 2 contracts
Sources: Accommodation Cross Collateralization Deed of Trust and Security Agreement (Felcor Lodging Trust Inc), Deed of Trust and Security Agreement (Felcor Lodging Trust Inc)
Partial Release. After Provided no Event of Default shall have occurred and be continuing, Borrower shall have the First Open Defeasance Date right at any time after June 1, 2020, and prior to the First Open Payment Date, and provided no Event of Default exists, Borrower may from time Maturity Date to time obtain a partial the release (a the “Partial Release”) of any one or more of the Individual Properties (individually and collectively, as the context requires, the “Released Property”) from the lien of the Mortgage applicable Security Instrument thereon (and related Loan Documents) and the release of Borrower’s obligations under the Loan Documents of up with respect to two of the individual Mortgaged Properties listed on Schedule 2.17 hereto such Released Property (each such individual Mortgaged Property other than those expressly stated to be released, a “Partial Release Property”survive), provided that all upon the satisfaction of each of the following conditions precedent have been satisfied with respect to any such Partial Release of any such Partial Release Propertyprecedent:
(a) No Borrower shall provide Lender with thirty (30) days (or a shorter period of time if permitted by Lender in its sole discretion) prior written notice of the proposed Partial Release (the date of Lender’s receipt of such notice shall be referred to herein as a “Partial Release Property will be permitted until after the First Open Defeasance Date or if any Event of Default has occurred and is continuing. No Partial Release of the Partial Release Property will be permitted on or after the First Open Payment Notice Date. No more than two Partial Release Properties may be released during the term of the Loan”).
(b) No Partial Release Any and all sums due and payable to Lender under the Loan Documents on each of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that Notice Date and the Debt Service Coverage Ratio for the remainder date of consummation of the Mortgaged Property Partial Release, shall be fully paid and no Event of Default (i.e., exclusive other than an Event of any income from Default which applies only to the Released Property) shall be continuing as of the Partial Release PropertyNotice Date or the date of consummation of the Partial Release.
(c) is and Borrower shall continue to be equal to have paid or greater than the greater of (i) the Debt Service Coverage Ratio reimbursed Lender for the Mortgaged Property calculated immediately prior to all out-of-pocket expenses reasonably incurred by Lender in connection with the Partial Release (i.e.including without limitation, inclusive of the income from the Partial Release Propertyreasonable out-of-pocket attorneys’ fees, appraisal fees, recording costs and trustee’s fees).
(d) Borrower shall submit to Lender, and (ii) 1.30:1.00. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance date of such larger Partial Defeasance Amount. No Partial Defeasance, nor any increase in any Partial Defeasance Amount under this paragraph (b) or paragraphs (c) below, shall affect the allocated loan amounts for the remaining Mortgaged Property as set forth on Schedule 2.17.
(c) No Partial Release of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the value of the remainder of the Mortgaged Property (as determined by then-current Appraisals prepared by Appraisers approved by Lender, the fees and expenses of which shall be paid by Borrower) is sufficient to satisfy a loan-to-value ratio (based on the outstanding principal balance of the Loan immediately prior to the Partial Release, less the allocated loan amount a release of lien (and related Loan Documents) for the Partial Release Property) Released Property for execution by Lender. Such release shall be in a form appropriate in each jurisdiction in which the Released Property is located and shall contain standard provisions, if any, protecting the lesser rights of Lender. In addition, Borrower shall provide all other documentation as may reasonably be required to satisfy the Prudent Lender Standard in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) 75% is in compliance with all applicable Legal Requirements, and (ii) will effect such release in accordance with the loan-to-value ratio for the Mortgaged Property (inclusive terms of the Partial Release Property, and based on the outstanding principal balance of the Loan immediately prior to the Partial Release) calculated immediately prior to the Partial Release. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount.
(d) The Partial Release shall be allowed only in connection with a bona fide all-cash sale of the Partial Release Parcel to an unaffiliated third party on arms-length terms and conditions, and upon closing of such sale (and thereafter) shall not be owned, purchased or acquired by Borrower or any Affiliate of Borrowerthis Agreement.
(e) Borrower will on the date The future uses of the Partial Release (Released Property may not violate any exclusivity or other provision in any Lease pertaining to any Individual Property not being released nor any covenant, restriction, condition or other title matter then encumbering the “Partial Release Date”) complete a Partial Defeasance, pursuant to Section 2.7 hereof, of a portion of the Loan (the “Partial Defeasance Amount” for such Partial Release Property) equal to 125% of the allocated loan amount for the Partial Release Property set forth on Schedule 2.17 hereto; provided, that if Borrower elects in connection with a Partial Defeasance of a Partial Release Property to increase the Partial Defeasance Amount for such Partial Release Property pursuant to the provisions of paragraphs (b) and/or (c) above, the Partial Defeasance Amount for such Partial Release Property shall be such higher amount for purposes of such Partial Defeasance.
(f) Borrower will execute (and Guarantor will consent in writing thereto and reaffirm their obligations under the Loan Documents to which they are a party notwithstanding the Partial Release) and deliver all such amendments to the Loan Documents and other instruments or documents as may be required by Lender (using commercial standards customarily applied with respect to mortgage loans such as the Loan) in order to continue to fully protect Lender’s lien and security interest in the remainder of the Mortgaged Property.
(g) Borrower will cause the Master Homesite Lease(s) to be amended to exclude the Partial Release Property pursuant to documentation reasonably satisfactory to Lender.
(h) Borrower, at its sole cost and expense, shall obtain endorsements to Lender’s loan policy of title insurance satisfactory in form and content to Lender, which endorsements will (a) affirmatively evidence the continued validity of Lender’s first lien position created by the Loan Documents through the date of recordation of the partial release of the Partial Release Property, and (b) insure that the lien created by the Loan Documents remains a valid first lien on the remainder of the Mortgaged Property.
(i) Borrower shall pay for the costs of preparing and recording partial releases, UCC-3 releases, and any loan modification documents, easements, declarations, and/or restrictive covenants required by Lender, Lender’s reasonable attorneys’ fees and costs, all survey charges and costs, all title premiums and costs, documentary stamps incurred in connection with the release of the Partial Release Property in accordance with the requirements contained herein, and all other reasonable out-of-pocket costs, fees, and expenses incurred by Lender in connection with the requested release of the Partial Release Property.
(j) Borrower shall have provided Lender with a Rating Confirmation with respect to the Partial Release.
(k) Borrower shall pay Lender’s reasonable costs and expenses in connection with the Partial Release, as set forth below. Borrower shall pay or reimburse Lender for all reasonable costs and expenses incurred by Lender in connection with such request for a Partial Release, including, but not limited to, the preparation, negotiation and review of any and all materials required to be provided in connection therewith (including Lender’s reasonable attorneys’ fees and expenses).
Appears in 1 contract
Partial Release. After The Loan is secured by, among other things, the First Open Defeasance Date Mortgages covering six (6) separate and prior to the First Open Payment Datedistinct parcels of improved real property, which are identified on Exhibit A-1 through Exhibit A-6, annexed hereto and made a part hereof, and provided no Event of Default exists, Borrower may from time all Improvements thereon. Lender agrees to time obtain a partial release (a “Partial Release”) from the lien of the Mortgage Mortgages and the Loan Documents of up to two of the individual Mortgaged Properties listed on Schedule 2.17 hereto other security documents (each such individual Mortgaged Property to be releasedeach, a “Partial Release Property”)"Release") one or more of said parcels, provided that all subject to satisfaction of the following conditions precedent have been satisfied with respect to any such Partial Release of any such Partial Release Propertyprecedents:
(ai) No Partial Release 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 a Partial Release Property will be permitted until after any requested Release, containing among other things, the First Open Defeasance Date or if any Event of Default has occurred and parcel that is continuing. No Partial Release the subject of the Partial Release Property will be permitted on or after Notice (the First Open Payment Date. No more than two Partial Release Properties may be released during "RELEASE PROPERTY") and the term proposed date of the Loan.
(b) No Partial Release of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the Debt Service Coverage Ratio for the remainder of the Mortgaged Property (i.e., exclusive of any income from the Partial Release Property) is and shall continue to be equal to or greater than the greater of (i) the Debt Service Coverage Ratio for the Mortgaged Property calculated immediately prior to the Partial Release (i.e., inclusive of the income from the Partial Release Property"RELEASE DATE"), and ;
(ii) 1.30:1.00. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice Borrowers shall pay to Lender given not less than ten a release price (10the "RELEASE PRICE") days prior equal to the Partial Defeasance increase higher of (A) the Partial Defeasance Amount to an applicable amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount. No Partial Defeasance, nor any increase in any Partial Defeasance Amount under this paragraph (b) or paragraphs (c) below, shall affect the allocated loan amounts for the remaining Mortgaged Property as set forth on Schedule 2.17.12.1 with respect to the Release Property or (B) the amount required to satisfy the requirements of subsection (iii) below;
(ciii) No Partial Release the principal amount of the Partial Loan after application of the Release Parcel will Price (the "REDUCED LOAN AMOUNT") shall be permitted unless Borrower establishes to no more than sixty percent (60%) of Lender’s satisfaction that 's then underwritten value of the Projects other than the Release Property (the "REMAINING PROJECTS") and the value of the remainder Remaining Projects shall be not less than $35,000,000, based on (I) Appraisals of the Mortgaged Remaining Projects reasonably acceptable to Lender and dated within three (3) months of the 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 the Release Notice;
(as determined iv) no Default shall have occurred and be continuing and no Event of Default shall have occurred on either or both of (A) the date on which the Release Notice is delivered to Lender or (B) the date on which the actual Release would occur;
(v) the representations and warranties made by then-current Appraisals prepared by Appraisers approved by Lender, Borrowers in this Agreement and in the fees and expenses of which other Loan Documents shall be paid by Borrowertrue and correct in all material respects on and as of the Release Date with the same force and effect as if made on and as of such date;
(vi) is sufficient Borrowers shall deliver to satisfy a loan-to-value ratio Lender an Officer's Certificate confirming the satisfaction of the conditions set forth in the foregoing clauses;
(based on the outstanding principal balance vii) Borrowers shall have executed and delivered or caused to be executed and delivered to Lender (i) amendments and/or modifications of any of the Loan immediately prior to the Partial Release, less the allocated loan amount for the Partial Release Property) which is the lesser of (i) 75% and (ii) the loan-to-value ratio for the Mortgaged Property (inclusive of the Partial Release Property, and based on the outstanding principal balance of the Loan immediately prior to the Partial Release) calculated immediately prior to the Partial Release. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount.
(d) The Partial Release shall be allowed only in connection with a bona fide all-cash sale of the Partial Release Parcel to an unaffiliated third party on arms-length terms and conditions, and upon closing of such sale (and thereafter) shall not be owned, purchased or acquired by Borrower or any Affiliate of Borrower.
(e) Borrower will on the date of the Partial Release (the “Partial Release Date”) complete a Partial Defeasance, pursuant to Section 2.7 hereof, of a portion of the Loan (the “Partial Defeasance Amount” for such Partial Release Property) equal to 125% of the allocated loan amount for the Partial Release Property set forth on Schedule 2.17 hereto; provided, that if Borrower elects in connection with a Partial Defeasance of a Partial Release Property to increase the Partial Defeasance Amount for such Partial Release Property pursuant to the provisions of paragraphs (b) and/or (c) above, the Partial Defeasance Amount for such Partial Release Property shall be such higher amount for purposes of such Partial Defeasance.
(f) Borrower will execute (and Guarantor will consent in writing thereto and reaffirm their obligations under the Loan Documents to which they are a party notwithstanding the Partial Release) and deliver all such amendments to the Loan Documents and other instruments or documents as may be required by Lender (using commercial standards customarily applied with respect to mortgage loans such as the Loan) in order to continue to fully protect Lender’s lien and security interest in the remainder of the Mortgaged Property.
(g) Borrower will cause the Master Homesite Lease(s) to be amended to exclude the Partial Release Property pursuant to documentation reasonably satisfactory to Lender.
(h) Borrower, at its sole cost and expense, shall obtain endorsements to Lender’s loan policy of title insurance satisfactory in form and content to Lender, which endorsements will (a) affirmatively evidence the continued validity of Lender’s first lien position created by the Loan Documents through the date of recordation of the partial release of the Partial Release Property, and (b) insure that the lien created by the Loan Documents remains a valid first lien on the remainder of the Mortgaged Property.
(i) Borrower shall pay for the costs of preparing and recording partial releases, UCC-3 releases, and any loan modification documents, easements, declarations, and/or restrictive covenants required by Lender, Lender’s reasonable attorneys’ fees (ii) reaffirmations of any Guaranty and costs, all survey charges and costs, all title premiums and costs, documentary stamps incurred in connection with (iii) such other agreements as Lender may reasonably require to reflect the release of the Partial Release Property in accordance with the requirements contained herein, and Property;
(viii) Borrowers shall pay all other reasonable out-of-pocket costs, fees, costs and expenses incurred by Lender in connection with the requested release Release and the determination of the Partial Release Property.Release, including, without limitation, Lender's reasonable attorney's fees and expenses; and
(jix) Borrower Borrowers shall have provided paid to Lender on or before the Release Date, by wire transfer of immediately available funds, (A) the Release Price, as a principal prepayment under the Loan, (B) all accrued interest, costs, prepayment premiums or fees relating to the Release, and (C) the Exit Fee (if any), to the extent payable by reason of the Release and the principal repayment relating thereto. In connection with Lender's review of the above conditions, Borrowers shall provide Lender with a Rating Confirmation with respect to the Partial Release.
(k) Borrower shall pay Lender’s reasonable costs and expenses in connection with the Partial Release, such information as set forth below. Borrower shall pay or reimburse Lender for all reasonable costs and expenses incurred by Lender in connection with such request for a Partial Releasemay reasonably require, including, but not limited to, the preparationfollowing: (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, negotiation the Remaining Projects and review 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 is deposited. EXECUTED as of the date first set forth above. 4499 ACUSHNET AVENUE, LLC B▇: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇tnership, L.P. Its Sole Member By: /s/ R. Steven Hamner ------------------------------------ R. Steven Hamner Executive ▇▇▇▇ ▇▇▇▇▇▇▇▇t and all materials required to CFO 8451 PEARL STREET, LLC By: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇tnership, L.P. Its Sole Member By: /s/ R. Steven Hamner ------------------------------------ R. Steven Hamner Executive ▇▇▇▇ ▇▇▇▇▇▇▇▇t and CFO 92 BRICK ROAD, LLC By: MPT Operating Partnership, L.P. Its Sole Member By: /s/ R. Steven Hamner ------------------------------------ R. Steven Hamner Executive ▇▇▇▇ ▇▇▇▇▇▇▇▇t and CFO 1300 CAMPBELL LANE, LLC By: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇tnership, L.P. Its Sole Member By: /s/ R. Steven Hamner ------------------------------------ R. Steven Hamner Executive ▇▇▇▇ ▇▇▇▇▇▇▇▇t and CFO 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 Interest Coverage Ratio shall be provided in connection therewith (including Lender’s reasonable attorneys’ fees a minimum of 2 to1 for the first Defined Period after the Closing Date and expenses)for each subsequent Defined Period thereafter.
Appears in 1 contract
Partial Release. After the First Open Defeasance Date and prior to the First Open Payment Date, and provided Provided no Event of Default existsshall have occurred and be continuing (other than a non-monetary Event of Default that affects or is otherwise related solely to the Atrium Parcel and which Event of Default will no longer continue to exist upon such release of the Atrium Parcel), Borrower may from shall have the right at any time prior to time the Maturity Date to obtain a partial the release (a the “Partial Release”) of the Atrium Parcel from the lien of the Mortgage Security Instrument thereon (and related Loan Documents) and the release of Borrower’s obligations under the Loan Documents of up with respect to two of the individual Mortgaged Properties listed on Schedule 2.17 hereto Atrium Parcel (each such individual Mortgaged Property other than those expressly stated to be released, a “Partial Release Property”survive), provided that all upon the satisfaction of each of the following conditions precedent have been satisfied with respect to any such Partial Release of any such Partial Release Propertyprecedent:
(ai) No Partial Release Administrative Agent shall have received at least fifteen (15) Business Days (or a shorter period of a Partial Release Property will be time if permitted until after by Administrative Agent in its sole discretion) prior written notice requesting the First Open Defeasance Date or if any Event of Default has occurred and is continuing. No Partial Release release of the Partial Release Property will be permitted on or after the First Open Payment Date. No more than two Partial Release Properties may be released during the term of the Loan.Atrium Parcel;
(b) No Partial Release of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the Debt Service Coverage Ratio for the remainder of the Mortgaged Property (i.e., exclusive of any income from the Partial Release Property) is and shall continue to be equal to or greater than the greater of (i) the Debt Service Coverage Ratio for the Mortgaged Property calculated immediately prior to the Partial Release (i.e., inclusive of the income from the Partial Release Property), and (ii) 1.30:1.00. If Borrower shall, in accordance with the foregoing condition would not be satisfied by defeasance provisions of Section 2.7(a) above, prepay the Partial Defeasance Amount indicated Loan in subparagraph an amount equal to the Release Price (eincluding, without limitation, any Prepayment Premium applicable thereto);
(iii) belowBorrower shall submit to Administrative Agent, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase date of such release, a release of lien (and related Loan Documents) for the Atrium Parcel for execution by Administrative Agent. Such release shall be in a form appropriate in the State in which the Property is located and shall contain standard provisions, if any, protecting the rights of the releasing lenders. In addition, Borrower shall provide all other documentation in connection with such release as may be reasonably requested by Administrative Agent, together with an Officer’s Certificate certifying that such documentation is in compliance with all applicable Legal Requirements;
(iv) Borrower shall have delivered evidence that would be reasonably satisfactory to Administrative Agent that, immediately after giving effect to the release of the Atrium Parcel, the portion of the Property remaining encumbered by the Security Instrument (the “Remaining Property”) shall (A) not, as a result of such release, fail to comply in all material respects with all applicable Legal Requirements, including, without limitation, all applicable zoning and building laws, rules, ordinances and regulations, (B) be legally subdivided and (C) constitute one or more separate tax lots;
(v) Borrower shall have delivered evidence reasonably satisfactory to Administrative Agent that Borrower has entered into a reciprocal easement agreement (in form and substance reasonably satisfactory to Administrative Agent) with the owner of the Atrium Parcel (the “Atrium REA”), which Atrium REA shall provide for easements, cross-easements and mutual or non-exclusive easements for ingress, egress, access, pedestrian walkways, parking, traffic flow, drainage, utilities and services shared by the Atrium Parcel and the Remaining Property, in each case, as deemed reasonably necessary by Administrative Agent; provided that Administrative Agent shall reasonably approve the Atrium REA upon satisfaction of certain conditions to be mutually agreed upon by Administrative Agent and Borrower in good faith. Notwithstanding anything to the contrary set forth herein, upon satisfaction of all conditions for the Partial Defeasance Amount to an amount which would result Release set forth in the foregoing condition being satisfied upon completion this Section 2.10 and approval of the Partial Defeasance Atrium REA by Administrative Agent in accordance with the terms hereof, Administrative Agent shall subordinate the lien of such larger Partial Defeasance Amount. No Partial Defeasance, nor any increase in any Partial Defeasance Amount under this paragraph (b) or paragraphs (c) below, shall affect the allocated loan amounts for Security Instrument to the remaining Mortgaged Property as set forth on Schedule 2.17Atrium REA.
(cvi) No Partial Release Borrower shall provide an endorsement (to the extent such endorsement is available under the applicable Legal Requirements) to the Title Insurance Policy relating to the Remaining Property (which endorsement shall be issued by the title insurance company that issued the Title Insurance Policy): (i) confirming, in each case as of the Partial Release effective date of the release of the Atrium Parcel, no change in the priority of the Security Instrument on the Remaining Property and insuring that there are no liens, mortgages, deeds of trust or other security instruments, as the case may be, not otherwise permitted by the Loan Documents, encumbering the Remaining Property, (ii) if not already part of the insured estate in the Title Insurance Policy (and such estate is not being released), insuring Lenders’ interest in any easements benefitting the Remaining Property created in connection with the release of the Atrium Parcel will be permitted unless Borrower establishes to Lender’s satisfaction (including any easements granted under Section 2.10(v) above), (iii) [reserved], and (iv) insuring that the value of the remainder of the Mortgaged Property (as determined by then-current Appraisals prepared by Appraisers approved by Lender, the fees and expenses of which shall be paid by Borrower) is sufficient to satisfy a loan-to-value ratio (based on the outstanding principal balance of the Loan immediately prior Remaining Property (excluding the Atrium Parcel) constitutes separate tax lots and has been legally subdivided;
(vii) Borrower shall have delivered to Administrative Agent evidence that would be reasonably satisfactory to Administrative Agent that the release of the Atrium Parcel will not violate any term or provision of any Lease in effect at the Remaining Property at the time of the release of the Atrium Parcel, which evidence may take the form of a certification from Borrower contained in the Officer’s Certificate referenced in Section 2.10(xiii) below;
(viii) To the extent such survey is not delivered in connection with the closing of the Loan, Borrower shall have delivered, or caused to be delivered, a survey of the Atrium Parcel and the Remaining Property, which survey shall include a legal description of the Atrium Parcel and the Remaining Property and shall otherwise be in such form as would be reasonably satisfactory to Administrative Agent;
(ix) Intentionally omitted;
(x) As of the date of consummation of the Partial Release, less after giving effect to the allocated loan amount for the Partial Release Property) which is the lesser of (i) 75% and (ii) the loan-to-value ratio for the Mortgaged Property (inclusive release of the Partial Release Property, and based on Atrium Parcel from the outstanding principal balance lien of the Loan immediately prior Security Instrument, the LTV with respect to the Partial Release) calculated immediately prior to the Partial Release. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount.
(d) The Partial Release shall be allowed only in connection with a bona fide all-cash sale of the Partial Release Parcel to an unaffiliated third party on arms-length terms and conditions, and upon closing of such sale (and thereafter) shall not be owned, purchased or acquired by Borrower or any Affiliate of Borrower.
(e) Borrower will on the date of the Partial Release (the “Partial Release Date”) complete a Partial Defeasance, pursuant to Section 2.7 hereof, of a portion of the Loan (the “Partial Defeasance Amount” for such Partial Release Property) equal to 125% of the allocated loan amount for the Partial Release Property set forth on Schedule 2.17 hereto; provided, that if Borrower elects in connection with a Partial Defeasance of a Partial Release Property to increase the Partial Defeasance Amount for such Partial Release Property pursuant to the provisions of paragraphs (b) and/or (c) above, the Partial Defeasance Amount for such Partial Release remaining Property shall be such higher amount for purposes no greater than the LTV as of such Partial Defeasance.the Closing Date (i.e., 74.627%);
(f) Borrower will execute (and Guarantor will consent in writing thereto and reaffirm their obligations under the Loan Documents to which they are a party notwithstanding the Partial Release) and deliver all such amendments to the Loan Documents and other instruments or documents as may be required by Lender (using commercial standards customarily applied with respect to mortgage loans such as the Loan) in order to continue to fully protect Lender’s lien and security interest in the remainder of the Mortgaged Property.
(g) Borrower will cause the Master Homesite Lease(s) to be amended to exclude the Partial Release Property pursuant to documentation reasonably satisfactory to Lender.
(h) Borrower, at its sole cost and expense, shall obtain endorsements to Lender’s loan policy of title insurance satisfactory in form and content to Lender, which endorsements will (a) affirmatively evidence the continued validity of Lender’s first lien position created by the Loan Documents through the date of recordation of the partial release of the Partial Release Property, and (b) insure that the lien created by the Loan Documents remains a valid first lien on the remainder of the Mortgaged Property.
(ixi) Borrower shall pay have (or shall have caused to be) paid or reimbursed Administrative Agent for the all out-of-pocket costs of preparing and recording partial releasesexpenses incurred by Administrative Agent (including, UCC-3 releaseswithout limitation, and any loan modification documents, easements, declarations, and/or restrictive covenants required by Lender, Lender’s reasonable attorneys’ fees and costsdisbursements) in connection with the release of the Atrium Parcel. Borrower shall pay all recording charges, filing fees, taxes or other expenses (including, without limitation, mortgage and intangibles taxes and documentary stamp taxes) payable in connection with the release of the Atrium Parcel. Borrower shall have paid all survey charges costs and costs, all title premiums and costs, documentary stamps expenses of the Rating Agencies incurred in connection with the release of the Partial Release Property in accordance Atrium Parcel;
(xii) If required by Administrative Agent after a Securitization, Borrower shall furnish Administrative Agent with an opinion of counsel that the requirements contained hereinrelease will not constitute a “significant modification” of the Loan under Section 1001 of the IRS Code or otherwise cause a tax to be imposed on a “prohibited transaction” by any REMIC, which opinion shall not contain any qualifications or assumptions other than qualifications and assumptions customary for such an opinion;
(xiii) Intentionally omitted;
(xiv) Borrower shall deliver all other reasonable out-of-pocket costs, fees, documents and expenses incurred by Lender in connection with the requested items as Administrative Agent may reasonably request and execute such documents and instruments as are typical for transactions similar to such release of the Atrium Parcel;
(xv) All conditions precedent to the applicable Partial Release Property.set forth in Section 2.10 of the applicable Mezzanine Loan Agreement have been complied with by Mezzanine Borrowers and Borrower shall have delivered, or cause to be delivered, to Administrative Agent evidence thereof; and
(jxvi) Borrower shall deliver an Officer’s Certificate certifying that all requirements set forth in this Section 2.10 have provided Lender with been satisfied. Notwithstanding the foregoing provisions of this Section 2.10, if the Loan is included in a Rating Confirmation with respect REMIC, the release of the Atrium Parcel shall not be permitted unless, immediately after the release of the Atrium Parcel, either (i) the ratio of the unpaid principal balance of the Loan to the value of the Remaining Property is equal to or less than 125% (such value to be determined, in Administrative Agent’s sole discretion, by any commercially reasonable method permitted to a REMIC) or (ii) the principal balance of the Loan is paid down by the least of the following amounts: (1) the net proceeds of the sale of the Atrium Parcel, (2) the fair market value of the Atrium Parcel at the time of the release of the Atrium Parcel, or (3) an amount such that the loan-to-value ratio of the Loan (as so determined by Lender) does not increase after the release of the Atrium Parcel, unless Administrative Agent receives an opinion of counsel that if such amount is not paid, the Securitization will not fail to maintain its status as a REMIC as a result of the release of the Atrium Parcel. Administrative Agent shall, if requested by Borrower, confirm to the Mezzanine Lenders (which confirmation can be delivered via email) whether the conditions to the Partial Release.
(k) Borrower shall pay Lender’s reasonable costs and expenses in connection with the Partial Release, as Release set forth below. Borrower shall pay in this Section 2.10 have been satisfied (or reimburse Lender for all reasonable costs and expenses incurred by Lender in connection with such request for a Partial Release, including, but not limited to, the preparation, negotiation and review of any and all materials required to be provided in connection therewith (including Lender’s reasonable attorneys’ fees and expenseswaived).
Appears in 1 contract
Sources: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Partial Release. After the First Open Defeasance Date and prior Mortgagee agrees to the First Open Payment Date, and provided no Event of Default exists, Borrower may from time to time obtain issue a partial release (a “Partial Release”) from the lien of the Mortgage and the Loan Documents of up to two this Mortgage, without prepayment of the individual Debt or payment of a release price, of that certain undeveloped portion of the Mortgaged Properties listed Property as approximately depicted in the cross-hatched area on Schedule 2.17 Exhibit B attached hereto (each such individual Mortgaged Property to be released, a “the "Partial Release Property”Parcel"; such partial release thereof being herein referred to as the "Partial Release"), provided that all of the following conditions precedent have been satisfied with respect to any such Partial Release of any such Partial Release Propertysatisfied:
(a) No Partial Release of Mortgagor shall have submitted a Partial Release Property will be permitted until after written request to Mortgagee for the First Open Defeasance Date or if any Event of Default has occurred and is continuing. No Partial Release of the Partial Release Property will be permitted on or after the First Open Payment Date. No more than two Partial Release Properties may be released during the term of the Loan.
(b) No Partial Release release of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the Debt Service Coverage Ratio for the remainder of the Mortgaged Property at least thirty (i.e., exclusive of any income from the Partial Release Property) is and shall continue to be equal to or greater than the greater of (i) the Debt Service Coverage Ratio for the Mortgaged Property calculated immediately prior to the Partial Release (i.e., inclusive of the income from the Partial Release Property), and (ii) 1.30:1.00. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (1030) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion date of the proposed Partial Defeasance of such larger Partial Defeasance Amount. No Partial Defeasance, nor any increase in any Partial Defeasance Amount under this paragraph Release;
(b) or paragraphs (c) below, no Event of Default shall affect the allocated loan amounts for the remaining Mortgaged Property as set forth on Schedule 2.17.have occurred and be continuing;
(c) No Partial Release of to the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction extent not sufficiently provided for in that the value of the remainder of the Mortgaged Property (as determined certain Operation and Easement Agreement dated June 1, 1999 by then-current Appraisals prepared by Appraisers and between ▇▇▇▇▇▇ ▇▇▇▇▇▇ Corporation, Meijer, Inc. and Ramco ▇▇▇▇▇▇▇▇▇▇ Properties, L.P., usual and appropriate reciprocal easement and common use agreements shall have been approved by LenderMortgagee, the fees and expenses of which shall be paid by Borrower) is sufficient to satisfy a loan-to-value ratio (based on the outstanding principal balance of the Loan immediately prior to the Partial Release, less the allocated loan amount for the Partial Release Property) which is the lesser of (i) 75% and (ii) the loan-to-value ratio for the Mortgaged Property (inclusive of the Partial Release Property, and based on the outstanding principal balance of the Loan immediately prior to the Partial Release) calculated immediately prior to the Partial Release. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount.
(d) The Partial Release shall be allowed only in connection with a bona fide all-cash sale of the Partial Release Parcel to an unaffiliated third party on arms-length terms and conditions, and upon closing of such sale (and thereafter) shall not be owned, purchased or acquired by Borrower or any Affiliate of Borrower.
(e) Borrower will on the date of the Partial Release (the “Partial Release Date”) complete a Partial Defeasance, pursuant to Section 2.7 hereof, of a portion of the Loan (the “Partial Defeasance Amount” for such Partial Release Property) equal to 125% of the allocated loan amount for the Partial Release Property set forth on Schedule 2.17 hereto; provided, that if Borrower elects in connection with a Partial Defeasance of a Partial Release Property to increase the Partial Defeasance Amount for such Partial Release Property pursuant to the provisions of paragraphs (b) and/or (c) above, the Partial Defeasance Amount for such Partial Release Property shall be such higher amount for purposes of such Partial Defeasance.
(f) Borrower will execute (and Guarantor will consent in writing thereto and reaffirm their obligations under the Loan Documents to which they are a party notwithstanding the Partial Release) and deliver all such amendments to the Loan Documents and other instruments or documents as may be required by Lender (using commercial standards customarily applied with respect to mortgage loans such as the Loan) in order , and executed by all necessary parties thereto providing, among other things, for cross ingress and egress with respect to continue to fully protect Lender’s lien and security interest in each portion of the remainder of the Mortgaged Property (the "Remaining Mortgaged Property.
(g") Borrower will cause the Master Homesite Lease(s) to be amended to exclude and the Partial Release Property pursuant to documentation reasonably satisfactory to Lender.
(h) BorrowerParcel, at its sole cost common use and expense, shall obtain endorsements to Lender’s loan policy of title insurance satisfactory in form and content to Lender, which endorsements will (a) affirmatively evidence the continued validity of Lender’s first lien position created by the Loan Documents through the date of recordation of the partial release of the Partial Release Propertymaintenance, and (b) insure that such other reciprocal agreements as may be usual and necessary under the lien created by the Loan Documents remains a valid first lien on the remainder of the Mortgaged Property.
(i) Borrower shall pay for the costs of preparing and recording partial releases, UCC-3 releases, and any loan modification documents, easements, declarations, and/or restrictive covenants required by Lender, Lender’s reasonable attorneys’ fees and costs, all survey charges and costs, all title premiums and costs, documentary stamps incurred in connection with the release of the Partial Release Property in accordance with the requirements contained herein, and all other reasonable out-of-pocket costs, fees, and expenses incurred by Lender in connection with the requested release of the Partial Release Property.
(j) Borrower shall have provided Lender with a Rating Confirmation with respect to the Partial Release.
(k) Borrower shall pay Lender’s reasonable costs and expenses in connection with the Partial Release, as set forth below. Borrower shall pay or reimburse Lender for all reasonable costs and expenses incurred by Lender in connection with such request for a Partial Releasecircumstances, including, but not limited to, access, utilities and parking;
(d) appropriate agreements or instruments shall have been delivered to Mortgagee providing for the preparationtransfer of title to the Partial Release Parcel, negotiation and review upon completion of the Partial Release, title to the Partial Release Parcel shall be transferred and no longer owned by Mortgagor;
(e) Mortgagee shall have received an endorsement to Mortgagee's title insurance policy covering the Mortgaged Property, insuring Mortgagee that the lien of this Mortgage is and remains a first lien against the Remaining Mortgaged Property and is not and will not be impaired or affected by reason of the release, and such other endorsements as Mortgagee may reasonably require;
(f) either (i) the Mortgaged Property shall have been (or will be, upon the completion of the Partial Release) legally subdivided pursuant to a properly recorded subdivision map which has been approved by all appropriate governmental offices providing that the Remaining Mortgaged Property and the Partial Release Parcel are separate and distinct legally subdivided parcels or (ii) Mortgagor shall have delivered to Mortgagee satisfactory evidence that a subdivision is not required by applicable law;
(g) Mortgagor shall have provided to Mortgagee a satisfactory legal description of the Release Partial which accurately describes the Release Parcel as an area of the Mortgaged Property substantially similar to the cross-hatched area depicted on Exhibit B, and the Release Partial shall not exceed 85,000 square feet.
(h) Mortgagor shall have provided to Mortgagee satisfactory evidence that the Partial Release Parcel has a tax identification number or assessor's parcel number separate from the Remaining Mortgaged Property and no part of the Remaining Mortgaged Property is part of a tax lot affecting any portion of the Partial Release Parcel (which may be accomplished by delivery to Mortgagee of a separate tax parcel endorsement to Mortgagee's title insurance policy, in a form reasonably satisfactory to Mortgagee);
(i) Mortgagor shall have executed and delivered to Mortgagee all materials required documents and instruments necessary or appropriate to be provided effectuate the Partial Release;
(j) Mortgagor shall have delivered to Mortgagee evidence satisfactory to Mortgagee, using commercial standards customarily applied with respect to mortgage loans such as the Loan, that the Remaining Mortgaged Property fully complies with all applicable zoning laws and ordinances, and that no reduction in connection therewith (including Lender’s reasonable attorneys’ fees and expenses).parking, landscaping or other amenities shall result from the Partial Release;
Appears in 1 contract
Partial Release. After Upon the First Open Defeasance Date and prior filing of a condominium regime for either (i) all or a portion of the Hotel Security, or (ii) all or a portion of the Apartment Security, Lender agrees to the First Open Payment Date, and provided no Event of Default exists, Borrower may from time to time obtain a partial release (a “Partial Release”) from the lien of the Mortgage the Hotel Security (a “Hotel Partial Release”) or the Apartment Security, (a “Apartment Partial Release” and the Loan Documents of up to two of the individual Mortgaged Properties listed on Schedule 2.17 hereto (together with a Hotel Partial Release, each such individual Mortgaged Property to be released, a “Partial Release PropertyRelease”), as applicable, provided that all of the following terms and conditions precedent have been are satisfied with respect to any such Partial Release of any such Partial Release Propertyas determined by Lender in its sole and absolute discretion:
(a) No A Partial Release of a Partial Release Property will shall be permitted until after from the First Open Defeasance Date or if any Event first day of Default has occurred August, 2006 through and is continuing. No Partial including the last day of April, 2010 (the “Release of the Partial Release Property will be permitted on or after the First Open Payment Date. No more than two Partial Release Properties may be released during the term of the LoanPeriod”).
(b) No Lender shall have approved, in its sole and reasonable discretion, all documents relating to the condominium regime and the proposed Partial Release.
(c) A Partial Release may take place not more than one (1) time during the Release Period.
(d) At the time of the applicable Partial Release, the Loan-to-Value Ratio for the Loan must be equal to or less than (i) 60% in the event of an Apartment Partial Release Parcel will (the “Hotel LTV Requirement”), or (ii) 75% in the event of a Hotel Partial Release (the “Apartment LTV Requirement”), each based upon the value of the remaining Mortgaged Property as reasonably estimated by Lender based upon an appraisal satisfying the definition of Loan-to- Value Ratio set forth in Article I hereof. Borrower shall have the right, to the extent required to satisfy this subsection (d), to pay down the principal balance of the Loan, together with the payment of the Prepayment Fee and/or Breakage Fee due in connection with such prepayment, by an amount necessary to satisfy the applicable Loan-to-Value Ratio. In the event of a principal pay down, the monthly interest only Loan payments due under the Note shall be permitted unless Borrower establishes to Lender’s satisfaction that adjusted accordingly.
(e) At the time of the applicable Partial Release, the Debt Service Coverage Ratio for the remainder of the Mortgaged Property shall not be less than 1.50 (i.e., exclusive of any income from the Partial Release Property) is and shall continue to be equal to or greater than the greater of assuming (i) Net Operating Income from the Debt Service Coverage Ratio for the remaining Mortgaged Property calculated immediately prior to the Partial Release (i.e., inclusive of the income from the Partial Release Property), only and (ii) 1.30:1.00. If the foregoing condition would any prepayment provided for in subsection (d) above shall have been made).
(f) The Loan shall not be satisfied by defeasance in default at the time such request for Partial Release is made through the completion of the Partial Defeasance Amount indicated in subparagraph Release, nor may any event have occurred which, after notice or passage of time or both, would constitute an Event of Default under the Loan Documents at such times.
(eg) belowBorrower shall pay all of Lender’s out-of-pocket costs associated with the review of the condominium documents and the Partial Release plus a non-refundable processing fee of $10,000 for such Partial Release. Without limitation, Borrower may by written notice shall pay within 10 days after receipt of ▇▇▇▇▇▇▇▇, all costs arising from any request for Partial Release, whether or not such Partial Release is actually approved or completed, including without limitation, the processing fee, legal fees, appraisal fees, market studies and expenses, title insurance premiums, recording fees and taxes.
(h) Borrower shall have prepared and delivered to Lender given not less than ten all documents that Lender is required to execute in order to effectuate the Partial Release at least fifteen (1015) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result Release and such documents shall be in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount. No Partial Defeasance, nor any increase in any Partial Defeasance Amount under this paragraph (b) or paragraphs (c) below, shall affect the allocated loan amounts for the remaining Mortgaged Property as set forth on Schedule 2.17.
(c) No Partial Release of the Partial Release Parcel will be permitted unless Borrower establishes form and substance satisfactory to Lender’s satisfaction that the value . The terms of the remainder of the Mortgaged Property (as determined by then-current Appraisals prepared by Appraisers approved by Lender, the fees and expenses of which shall be paid by Borrower) is sufficient to satisfy a loan-to-value ratio (based on the outstanding principal balance of the Loan immediately prior this Section are personal to the Partial ReleaseBorrower named on page one of this Deed of Trust and shall not apply to any successor, less the allocated loan amount for the Partial Release Property) which is the lesser assignee or transferee of (i) 75% and (ii) the loan-to-value ratio for the Mortgaged Property (inclusive of the Partial Release Property, and based on the outstanding principal balance of the Loan immediately prior Borrower. Any right to the Partial Release) calculated immediately prior to the Partial Release. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount.
(d) The request any Partial Release shall be allowed only in connection with a bona fide all-cash sale terminate and become null and void upon any transfer of title to the Partial Release Parcel to an unaffiliated third party on arms-length terms and conditionsMortgaged Property, and upon closing of such sale (and thereafter) shall not be owned, purchased or acquired by Borrower or any Affiliate of Borrower.
(e) Borrower will on the date of the Partial Release (the “Partial Release Date”) complete a Partial Defeasanceportion thereof, pursuant to Section 2.7 hereofor, of a portion of the Loan (the “Partial Defeasance Amount” for such Partial Release Property) equal to 125% of the allocated loan amount other than for the Partial Release Property set forth on Schedule 2.17 hereto; provided, that if Borrower elects in connection with a Partial Defeasance Permitted Transfers satisfying the terms of a Partial Release Property to increase the Partial Defeasance Amount for such Partial Release Property pursuant to the provisions of paragraphs (b) and/or (cSection 2.17(C) above, the Partial Defeasance Amount for such Partial Release Property shall be such higher amount for purposes upon any direct or indirect transfer of such Partial Defeasance.
(f) Borrower will execute (and Guarantor will consent in writing thereto and reaffirm their obligations under the Loan Documents to which they are a party notwithstanding the Partial Release) and deliver all such amendments to the Loan Documents and other instruments or documents as may be required by Lender (using commercial standards customarily applied with respect to mortgage loans such as the Loan) in order to continue to fully protect Lender’s lien and security any ownership interest in Borrower or in the remainder of the Mortgaged Property.
(g) Borrower will cause the Master Homesite Lease(s) to be amended to exclude the Partial Release Property pursuant to documentation reasonably satisfactory to Lender.
(h) BorrowerUpstream Owners, at its sole cost and expense, shall obtain endorsements to Lender’s loan policy of title insurance satisfactory in form and content to Lender, which endorsements will (a) affirmatively evidence the continued validity of Lender’s first lien position created whether or not any such transfers are permitted by the Loan Documents through the date terms of recordation this Deed of the partial release of the Partial Release Property, and Trust (b) insure that the lien created by the Loan Documents remains a valid first lien on the remainder of the Mortgaged Property.
(i) Borrower shall pay other than for the costs Permitted Transfers satisfying the terms of preparing and recording partial releasesSection 2.17(C) above), UCC-3 releases, and any loan modification documents, easements, declarations, and/or restrictive covenants required by Lender, Lender’s reasonable attorneys’ fees and costs, all survey charges and costs, all title premiums and costs, documentary stamps incurred in connection with the release of the Partial Release Property in accordance with the requirements contained herein, and all other reasonable out-of-pocket costs, fees, and expenses incurred or otherwise approved by Lender in connection with the requested release of the Partial Release Propertyadvance in writing.
(j) Borrower shall have provided Lender with a Rating Confirmation with respect to the Partial Release.
(k) Borrower shall pay Lender’s reasonable costs and expenses in connection with the Partial Release, as set forth below. Borrower shall pay or reimburse Lender for all reasonable costs and expenses incurred by Lender in connection with such request for a Partial Release, including, but not limited to, the preparation, negotiation and review of any and all materials required to be provided in connection therewith (including Lender’s reasonable attorneys’ fees and expenses).
Appears in 1 contract
Sources: Deed of Trust and Security Agreement (Behringer Harvard Opportunity REIT I, Inc.)
Partial Release. After the First Open Defeasance Date and prior to the First Open Payment Date, and provided Provided no Event of Default existsshall have occurred and be continuing (other than a non-monetary Event of Default that affects or is otherwise related solely to the Atrium Parcel and which Event of Default will no longer continue to exist upon such release of the Atrium Parcel), Borrower may from shall have the right at any time prior to time the Maturity Date to obtain a partial the release (a the “Partial Release”) of the Atrium Parcel from the lien of the Mortgage Security Instrument thereon (and related Loan Documents) and the release of Borrower’s obligations under the Loan Documents of up with respect to two of the individual Mortgaged Properties listed on Schedule 2.17 hereto Atrium Parcel (each such individual Mortgaged Property other than those expressly stated to be released, a “Partial Release Property”survive), provided that all upon the satisfaction of each of the following conditions precedent have been satisfied with respect to any such Partial Release of any such Partial Release Propertyprecedent:
(ai) No Partial Release Administrative Agent shall have received at least fifteen (15) Business Days (or a shorter period of a Partial Release Property will be time if permitted until after by Administrative Agent in its sole discretion) prior written notice requesting the First Open Defeasance Date or if any Event of Default has occurred and is continuing. No Partial Release release of the Partial Release Property will be permitted on or after the First Open Payment Date. No more than two Partial Release Properties may be released during the term of the Loan.Atrium Parcel;
(b) No Partial Release of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the Debt Service Coverage Ratio for the remainder of the Mortgaged Property (i.e., exclusive of any income from the Partial Release Property) is and shall continue to be equal to or greater than the greater of (i) the Debt Service Coverage Ratio for the Mortgaged Property calculated immediately prior to the Partial Release (i.e., inclusive of the income from the Partial Release Property), and (ii) 1.30:1.00. If Borrower shall, in accordance with the foregoing condition would not be satisfied by defeasance provisions of Section 2.7(a) above, prepay the Partial Defeasance Amount indicated Loan in subparagraph an amount equal to the Release Price (eincluding, without limitation, any Prepayment Premium applicable thereto);
(iii) belowBorrower shall submit to Administrative Agent, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase date of such release, a release of lien (and related Loan Documents) for the Partial Defeasance Amount to an amount which would result Atrium Parcel for execution by Administrative Agent. Such release shall be in a form appropriate in the foregoing condition being satisfied upon completion State in which the Property is located and shall contain standard provisions, if any, protecting the rights of the Partial Defeasance releasing lenders. In addition, Borrower shall provide all other documentation in connection with such release as may be reasonably requested by Administrative Agent, together with an Officer’s Certificate certifying that such documentation is in compliance with all applicable Legal Requirements;
(iv) Borrower shall have delivered evidence that would be reasonably satisfactory to Administrative Agent that, immediately after giving effect to the release of the Atrium Parcel, the portion of the Property remaining encumbered by the Security Instrument (the “Remaining Property”) shall (A) not, as a result of such larger Partial Defeasance Amountrelease, fail to comply in all material respects with all applicable Legal Requirements, including, without limitation, all applicable zoning and building laws, rules, ordinances and regulations, (B) be legally subdivided and (C) constitute one or more separate tax lots;
(v) Borrower shall have delivered evidence reasonably satisfactory to Administrative Agent that Borrower has entered into a reciprocal easement agreement (in form and substance reasonably satisfactory to Administrative Agent) with the owner of the Atrium Parcel (the “Atrium REA”), which Atrium REA shall provide for easements, cross-easements and mutual or non-exclusive easements for ingress, egress, access, pedestrian walkways, parking, traffic flow, drainage, utilities and services shared by the Atrium Parcel and the Remaining Property, in each case, as deemed reasonably necessary by Administrative Agent; provided that Administrative Agent shall reasonably approve the Atrium REA upon satisfaction of certain conditions to be mutually agreed upon by Administrative Agent and Borrower in good faith. No Partial Defeasance, nor any increase in any Partial Defeasance Amount under this paragraph (b) or paragraphs (c) below, shall affect Notwithstanding anything to the allocated loan amounts for the remaining Mortgaged Property as contrary set forth on Schedule 2.17.
(c) No Partial Release herein, upon satisfaction of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the value of the remainder of the Mortgaged Property (as determined by then-current Appraisals prepared by Appraisers approved by Lender, the fees and expenses of which shall be paid by Borrower) is sufficient to satisfy a loan-to-value ratio (based on the outstanding principal balance of the Loan immediately prior to the Partial Release, less the allocated loan amount all conditions for the Partial Release Propertyset forth in this Section 2.10 and approval of the Atrium REA by Administrative Agent in accordance with the terms hereof, Administrative Agent shall subordinate the lien of the Security Instrument to the Atrium REA.
(vi) Borrower shall provide an endorsement (to the extent such endorsement is available under the applicable Legal Requirements) to the Title Insurance Policy relating to the Remaining Property (which is endorsement shall be issued by the lesser of title insurance company that issued the Title Insurance Policy): (i) 75% confirming, in each case as of the effective date of the release of the Atrium Parcel, no change in the priority of the Security Instrument on the Remaining Property and insuring that there are no liens, mortgages, deeds of trust or other security instruments, as the case may be, not otherwise permitted by the Loan Documents, encumbering the Remaining Property, (ii) the loan-to-value ratio for the Mortgaged Property (inclusive if not already part of the Partial Release Property, and based on the outstanding principal balance of the Loan immediately prior to the Partial Release) calculated immediately prior to the Partial Release. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result insured estate in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount.
(d) The Partial Release shall be allowed only in connection with a bona fide all-cash sale of the Partial Release Parcel to an unaffiliated third party on arms-length terms and conditions, and upon closing of such sale Title Insurance Policy (and thereafter) shall such estate is not be ownedbeing released), purchased or acquired by Borrower or any Affiliate of Borrower.
(e) Borrower will on the date of the Partial Release (the “Partial Release Date”) complete a Partial Defeasance, pursuant to Section 2.7 hereof, of a portion of the Loan (the “Partial Defeasance Amount” for such Partial Release Property) equal to 125% of the allocated loan amount for the Partial Release Property set forth on Schedule 2.17 hereto; provided, that if Borrower elects in connection with a Partial Defeasance of a Partial Release Property to increase the Partial Defeasance Amount for such Partial Release Property pursuant to the provisions of paragraphs (b) and/or (c) above, the Partial Defeasance Amount for such Partial Release Property shall be such higher amount for purposes of such Partial Defeasance.
(f) Borrower will execute (and Guarantor will consent in writing thereto and reaffirm their obligations under the Loan Documents to which they are a party notwithstanding the Partial Release) and deliver all such amendments to the Loan Documents and other instruments or documents as may be required by Lender (using commercial standards customarily applied with respect to mortgage loans such as the Loan) in order to continue to fully protect Lender’s lien and security insuring Lenders’ interest in any easements benefitting the remainder of the Mortgaged Property.
(g) Borrower will cause the Master Homesite Lease(s) to be amended to exclude the Partial Release Remaining Property pursuant to documentation reasonably satisfactory to Lender.
(h) Borrower, at its sole cost and expense, shall obtain endorsements to Lender’s loan policy of title insurance satisfactory in form and content to Lender, which endorsements will (a) affirmatively evidence the continued validity of Lender’s first lien position created by the Loan Documents through the date of recordation of the partial release of the Partial Release Property, and (b) insure that the lien created by the Loan Documents remains a valid first lien on the remainder of the Mortgaged Property.
(i) Borrower shall pay for the costs of preparing and recording partial releases, UCC-3 releases, and any loan modification documents, easements, declarations, and/or restrictive covenants required by Lender, Lender’s reasonable attorneys’ fees and costs, all survey charges and costs, all title premiums and costs, documentary stamps incurred in connection with the release of the Partial Release Property in accordance with the requirements contained hereinAtrium Parcel (including any easements granted under Section 2.10(v) above), (iii) [reserved], and all other reasonable out-of-pocket costs(iv) insuring that the balance of the Remaining Property (excluding the Atrium Parcel) constitutes separate tax lots and has been legally subdivided;
(vii) Borrower shall have delivered to Administrative Agent evidence that would be reasonably satisfactory to Administrative Agent that the release of the Atrium Parcel will not violate any term or provision of any Lease in effect at the Remaining Property at the time of the release of the Atrium Parcel, fees, and expenses incurred by Lender which evidence may take the form of a certification from Borrower contained in the Officer’s Certificate referenced in Section 2.10(xiii) below;
(viii) To the extent such survey is not delivered in connection with the requested release closing of the Partial Release Property.
(j) Loan, Borrower shall have provided Lender with a Rating Confirmation with respect to the Partial Release.
(k) Borrower shall pay Lender’s reasonable costs and expenses in connection with the Partial Releasedelivered, as set forth below. Borrower shall pay or reimburse Lender for all reasonable costs and expenses incurred by Lender in connection with such request for a Partial Release, including, but not limited to, the preparation, negotiation and review of any and all materials required caused to be provided delivered, a survey of the Atrium Parcel and the Remaining Property, which survey shall include a legal description of the Atrium Parcel and the Remaining Property and shall otherwise be in connection therewith (including Lender’s reasonable attorneys’ fees and expenses).such form as would be reasonably satisfactory to Administrative Agent;
Appears in 1 contract
Sources: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Partial Release. After At Borrower's expense, Lender shall release its Lender Liens (and return any certificated securities the First Open Defeasance Date and prior to the First Open Payment Date, and provided no Event of Default exists, Borrower may from time to time obtain a partial release (a “Partial Release”) from the lien of the Mortgage and the Loan Documents of up to two of the individual Mortgaged Properties listed on Schedule 2.17 hereto (each such individual Mortgaged Property to be released, a “Partial Release Property”), provided that all of the following conditions precedent have been satisfied with respect to any such Partial Release subject of any such Partial Release Propertyrelease to the pledgor of them) on the following Collateral under the following circumstances if no Default, Potential Default, or Material-Adverse Effect exists or would occur upon the release and if the release would not cause a violation with Regulation U:
(a) No Partial Release of a Partial Release Property will be permitted until after Borrower may pledge additional Publicly-Traded Stock in substitution for, and request and obtain the First Open Defeasance Date or if any Event of Default has occurred and is continuing. No Partial Release release of the Partial Release Property will be permitted Lender Liens on, other Publicly-Traded Stock so long as -- immediately following any such substitution and release -- the Collateral Base applicable to Publicly-Traded Stock is not less than either (i) the Collateral Base immediately before such substitution and release if before March 31, 1996, or (ii) 150% of the unpaid principal balance of the Loan on or after the First Open Payment Date. No more than two Partial Release Properties may be released during the term of the LoanMarch 31, 1996.
(b) No Partial Release From time to time upon Borrower's request after March 31, 1996, at Borrower's expense, and to the extent that the Collateral Base applicable to Publicly-Traded Stock exceeds 150% of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the Debt Service Coverage Ratio for the remainder unpaid principal balance of the Mortgaged Property Loan (i.e., exclusive of any income from the Partial Release Property) is and an "EXCESS), then Lender shall continue to be equal to or greater than the greater of (i) the Debt Service Coverage Ratio for the Mortgaged Property calculated immediately prior release its Lender Liens on Publicly-Traded Stock to the Partial Release (i.e., inclusive extent of the income from the Partial Release Property), and (ii) 1.30:1.00. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to that excess without impairing its Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount. No Partial Defeasance, nor any increase in any Partial Defeasance Amount under this paragraph (b) or paragraphs (c) below, shall affect the allocated loan amounts for the remaining Mortgaged Property as set forth Liens on Schedule 2.17all other Publicly-Traded Stock.
(c) No Partial Release of Upon a prepayment under SECTION 3.7(A), if a Collateral-Base Deficiency will not exist immediately after the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that release, Lender shall release its Lender Liens on the value of Phar-Mor Stock or Borrower's interest in Hami▇▇▇▇ ▇▇▇▇▇▇, ▇▇ the remainder of the Mortgaged Property (as determined by then-current Appraisals prepared by Appraisers approved by Lendercase may be, the fees and expenses subject of which shall be paid by Borrower) is sufficient to satisfy a loan-to-value ratio (based on the outstanding principal balance of the Loan immediately prior to the Partial Release, less the allocated loan amount for the Partial Release Property) which is the lesser of (i) 75% and (ii) the loan-to-value ratio for the Mortgaged Property (inclusive of the Partial Release Property, and based on the outstanding principal balance of the Loan immediately prior to the Partial Release) calculated immediately prior to the Partial Release. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amountthat sale.
(d) The Partial Release shall be allowed only in connection with a bona fide all-cash sale Upon the release, sale, credit bid at foreclosure, or other disposition of all of the Partial Release Parcel to an unaffiliated third party Phar-Mor Stock that is Collateral, Lender shall release its Lender Liens on arms-length terms and conditions, and upon closing of such sale (and thereafter) shall not be owned, purchased or acquired by Borrower or any Affiliate of Borrower's interest in Hami▇▇▇▇ ▇▇▇▇▇▇.
(e) Upon the sale by Borrower will on the date of the Partial Release (the “Partial Release Date”) complete a Partial Defeasance, pursuant to Section 2.7 hereof, all of a portion of the Loan (the “Partial Defeasance Amount” for such Partial Release Property) equal to 125% of the allocated loan amount for the Partial Release Property set forth on Schedule 2.17 hereto; provided, that if Borrower elects in connection with a Partial Defeasance of a Partial Release Property to increase the Partial Defeasance Amount for such Partial Release Property pursuant to the provisions of paragraphs (b) and/or (c) above, the Partial Defeasance Amount for such Partial Release Property shall be such higher amount for purposes of such Partial Defeasance.
(f) Borrower will execute (and Guarantor will consent in writing thereto and reaffirm their obligations under the Loan Documents to which they are a party notwithstanding the Partial Release) and deliver all such amendments to the Loan Documents and other instruments or documents as may be required by Lender (using commercial standards customarily applied with respect to mortgage loans such as the Loan) in order to continue to fully protect Lender’s lien and security its interest in the remainder of the Mortgaged Property.
(g) Borrower will cause the Master Homesite Lease(s) to be amended to exclude the Partial Release Property pursuant to documentation reasonably satisfactory to Lender.
(h) Borrower, at its sole cost and expense, shall obtain endorsements to Lender’s loan policy of title insurance satisfactory in form and content to Lender, which endorsements will (a) affirmatively evidence the continued validity of Lender’s first lien position created by the Loan Documents through the date of recordation of the partial Hami▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ a release of the Partial Release PropertyLender Liens in Borrower's interest in Hami▇▇▇▇ ▇▇▇▇▇▇, and (b) insure that the lien created by the Loan Documents remains a valid first lien on the remainder ▇▇nder shall release its Lender Liens in all of the Mortgaged PropertyPhar-Mor Stock that is then Collateral. These are partial releases only in that they do not affect the Lender Liens on any Collateral not specifically released.
(i) Borrower shall pay for the costs of preparing and recording partial releases, UCC-3 releases, and any loan modification documents, easements, declarations, and/or restrictive covenants required by Lender, Lender’s reasonable attorneys’ fees and costs, all survey charges and costs, all title premiums and costs, documentary stamps incurred in connection with the release of the Partial Release Property in accordance with the requirements contained herein, and all other reasonable out-of-pocket costs, fees, and expenses incurred by Lender in connection with the requested release of the Partial Release Property.
(j) Borrower shall have provided Lender with a Rating Confirmation with respect to the Partial Release.
(k) Borrower shall pay Lender’s reasonable costs and expenses in connection with the Partial Release, as set forth below. Borrower shall pay or reimburse Lender for all reasonable costs and expenses incurred by Lender in connection with such request for a Partial Release, including, but not limited to, the preparation, negotiation and review of any and all materials required to be provided in connection therewith (including Lender’s reasonable attorneys’ fees and expenses).
Appears in 1 contract
Partial Release. After Provided no Event of Default shall have occurred and be continuing, Borrower shall have the First Open Defeasance Date right at any time after November 1, 2021, and prior to the First Open Payment Date, and provided no Event of Default exists, Borrower may from time Maturity Date to time obtain a partial the release (a the “Partial Release”) of any one or more of the Individual Properties (individually and collectively, as the context requires, the “Released Property”) from the lien of the Mortgage applicable Security Instrument thereon (and related Loan Documents) and the release of Borrower’s obligations under the Loan Documents of up with respect to two of the individual Mortgaged Properties listed on Schedule 2.17 hereto such Released Property (each such individual Mortgaged Property other than those expressly stated to be released, a “Partial Release Property”survive), provided that all upon the satisfaction of each of the following conditions precedent have been satisfied with respect to any such Partial Release of any such Partial Release Propertyprecedent:
(a) No Borrower shall provide Lender with thirty (30) days (or a shorter period of time if permitted by Lender in its sole discretion) prior written notice of the proposed Partial Release (the date of Lender’s receipt of such notice shall be referred to herein as a “Partial Release Property will be permitted until after Notice Date”);
(b) Any and all sums due and payable to Lender under the First Open Defeasance Date or if any Event of Default has occurred and is continuing. No Partial Release Loan Documents on each of the Partial Release Property will be permitted on or after Notice Date and the First Open Payment Date. No more than two Partial Release Properties may be released during the term date of consummation of the Loan.
Partial Release, shall be fully paid and no Event of Default (bother than an Event of Default which applies only to the Released Property) No Partial Release shall be continuing as of the Partial Release Parcel Notice Date or the date of consummation of the Partial Release;
(c) Borrower shall have paid or reimbursed Lender for all out-of-pocket expenses reasonably incurred by Lender in connection with the Partial Release (including without limitation, reasonable out-of-pocket attorneys’ fees, appraisal fees, recording costs and trustee’s fees);
(d) Borrower shall submit to Lender, not less than ten (10) days prior to the date of such Partial Release, a release of lien (and related Loan Documents) for the Released Property for execution by Lender. Such release shall be in a form appropriate in each jurisdiction in which the Released Property is located and shall contain standard provisions, if any, protecting the rights of Lender. In addition, Borrower shall provide all other documentation as may reasonably be required to satisfy the Prudent Lender Standard in connection with such release, together with an Officer’s Certificate certifying that such documentation (i) is in compliance with all applicable Legal Requirements, and (ii) will effect such release in accordance with the terms of this Agreement;
(e) The future uses of the Released Property may not violate any exclusivity or other provision in any Lease pertaining to any Individual Property not being released nor any covenant, restriction, condition or other title matter then encumbering the Property;
(f) Intentionally omitted;
(g) If required under the operative documents with respect to any Securitization, Lender shall have received evidence in writing from any applicable Rating Agency to the effect that the proposed Partial Release will not result in a qualification, reduction, downgrade or withdrawal of any rating initially assigned or to be assigned in such Securitization, or a waiver from any such rating agency stating that it has declined to review the Partial Release;
(h) The Partial Release shall be permitted unless under REMIC Requirements in effect as of the consummation of the Partial Release, and, if reasonably required by the Rating Agencies to confirm the same, Borrower establishes shall (i) deliver to Lender opinions of counsel satisfying the Prudent Lender Standard and acceptable the Rating Agencies (issued by counsel satisfying the Prudent Lender Standard and acceptable to the Rating Agencies)
(1) stating that the Partial Release will not cause (A) the Loan to cease to be a “qualified mortgage” within the meaning of Section 860G of the Code, either under the provisions of Treasury Regulation Sections 1.860G-2(a)(8) or 1.860G-2(b) (as such regulations may be amended or superseded from time to time) or under any other provision of the Code or otherwise, and (B) the failure of any REMIC Trust or any other entity that holds the Note to maintain its tax status and (2) with respect to such other matters as may be reasonably required by Lender and (ii) pay all of Lender’s satisfaction that reasonable out-of-pocket costs and expenses and the costs and expenses of the Rating Agencies in connection with the Partial Release, including, without limitation, reasonable out-of-pocket costs counsel fees;
(i) As of the date of consummation of the Partial Release, after giving effect to the release of the lien of the Security Instrument(s) encumbering the Released Property, the Debt Service Coverage Ratio for with respect to the remainder of remaining Individual Properties (based upon the Mortgaged Property trailing twelve (i.e., exclusive of any income from the Partial Release Property12) is and month period) shall continue to be equal to or greater than the greater of (i) the Debt Service Coverage Ratio for the Mortgaged Property calculated immediately prior to the Partial Release (i.e., inclusive as of the income from the Partial Release Property), and (ii) 1.30:1.00. If the foregoing condition would not be satisfied by defeasance of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount. No Partial Defeasance, nor any increase in any Partial Defeasance Amount under this paragraph (b) or paragraphs (c) below, shall affect the allocated loan amounts for the remaining Mortgaged Property as set forth on Schedule 2.17.
(c) No Partial Release of the Partial Release Parcel will be permitted unless Borrower establishes to Lender’s satisfaction that the value of the remainder of the Mortgaged Property (as determined by then-current Appraisals prepared by Appraisers approved by Lender, the fees and expenses of which shall be paid by Borrower) is sufficient to satisfy a loan-to-value ratio (based on the outstanding principal balance of the Loan immediately prior to the Partial Release, less the allocated loan amount for the Partial Release Property) which is the lesser of (i) 75% Closing Date and (ii) the loan-to-value ratio for the Mortgaged Property (inclusive of the Partial Release Property, and based on the outstanding principal balance of the Loan Debt Service Coverage Ratio immediately prior to the consummation of the Partial Release;
(j) calculated As of the date of consummation of the Partial Release, after giving effect to the release of the lien of the Security Instrument(s) encumbering the Released Property, the Debt Yield with respect to the remaining Individual Properties (based upon the trailing twelve (12) month period) shall be no less than the greater of (i) the Debt Yield as of the Closing Date or (ii) the Debt Yield immediately prior to the Partial Release. If the foregoing condition would not be satisfied by defeasance consummation of the Partial Defeasance Amount indicated in subparagraph (e) below, Borrower may by written notice to Lender given not less than ten (10) days prior to the Partial Defeasance increase the Partial Defeasance Amount to an amount which would result in the foregoing condition being satisfied upon completion of the Partial Defeasance of such larger Partial Defeasance Amount.
(d) The Partial Release shall be allowed only in connection with a bona fide all-cash sale of the Partial Release Parcel to an unaffiliated third party on arms-length terms and conditions, and upon closing of such sale (and thereafter) shall not be owned, purchased or acquired by Borrower or any Affiliate of Borrower.
(e) Borrower will on the date of the Partial Release (the “Partial Release Date”) complete a Partial Defeasance, pursuant to Section 2.7 hereof, of a portion of the Loan (the “Partial Defeasance Amount” for such Partial Release Property) equal to 125% of the allocated loan amount for the Partial Release Property set forth on Schedule 2.17 hereto; provided, that if Borrower elects in connection with a Partial Defeasance of a Partial Release Property to increase the Partial Defeasance Amount for such Partial Release Property pursuant to the provisions of paragraphs (b) and/or (c) above, the Partial Defeasance Amount for such Partial Release Property shall be such higher amount for purposes of such Partial Defeasance.
(f) Borrower will execute (and Guarantor will consent in writing thereto and reaffirm their obligations under the Loan Documents to which they are a party notwithstanding the Partial Release) and deliver all such amendments to the Loan Documents and other instruments or documents as may be required by Lender (using commercial standards customarily applied with respect to mortgage loans such as the Loan) in order to continue to fully protect Lender’s lien and security interest in the remainder of the Mortgaged Property.
(g) Borrower will cause the Master Homesite Lease(s) to be amended to exclude the Partial Release Property pursuant to documentation reasonably satisfactory to Lender.
(h) Borrower, at its sole cost and expense, shall obtain endorsements to Lender’s loan policy of title insurance satisfactory in form and content to Lender, which endorsements will (a) affirmatively evidence the continued validity of Lender’s first lien position created by the Loan Documents through the date of recordation of the partial release of the Partial Release Property, and (b) insure that the lien created by the Loan Documents remains a valid first lien on the remainder of the Mortgaged Property.
(i) Borrower shall pay for the costs of preparing and recording partial releases, UCC-3 releases, and any loan modification documents, easements, declarations, and/or restrictive covenants required by Lender, Lender’s reasonable attorneys’ fees and costs, all survey charges and costs, all title premiums and costs, documentary stamps incurred in connection with the release of the Partial Release Property in accordance with the requirements contained herein, and all other reasonable out-of-pocket costs, fees, and expenses incurred by Lender in connection with the requested release of the Partial Release Property.
(j) Borrower shall have provided Lender with a Rating Confirmation with respect to the Partial Release.;
(k) Borrower shall (i) partially prepay the Debt in accordance with Section 9 of the Note in an amount equal to 115% (120% if the Released Property is being transferred to a Borrower Affiliate) of the Allocated Loan Amount for the Released Property (the “Release Amount”), (ii) unless such prepayment is tendered on a Payment Date, pay Lender’s reasonable costs to Lender an amount equal to the interest that would have accrued on the amount being prepaid for the full Accrual Period had the prepayment not been made and expenses (iii) pay to Lender the Prepayment Consideration (as defined in connection the Note) to the extent that such prepayment occurs at any time other than on or after the Permitted Par Prepayment Date. Notwithstanding the foregoing, the Release Amount shall be an amount equal to 105% of the Allocated Loan Amount for the Released Property if, with respect to the Released Property, as of each of the Partial Release Notice Date and the date of consummation of the Partial Release, (i) the sole Tenant at such Released Property is the subject of a Bankruptcy Action, (ii) the sole Tenant at such Released Property has ceased business operations or otherwise “gone dark” at all or substantially all of its demised premises at the Released Property or has given written notice to Borrower that it intends to cease to conduct its business operations or otherwise “go dark” at all or substantially all of its demised premises at the Released Property, (iii) a default (beyond any applicable notice and cure period) by the sole Tenant at such Released Property is then continuing under its applicable Lease or (iv) a DSCR Trigger Event has occurred and Lender determines that the Debt Service Coverage Ratio, based on the trailing three (3) month period immediately preceding the date of such determination and calculated excluding the Released Property, is equal to or greater 1.85 to 1.00; provided, however, that the aggregate amount of the Allocated Loan Amounts for all Individual Properties that may be released pursuant to, and at the Release Amount set forth in, this sentence may not exceed an amount equal to $40,800,000.00 and if any Partial Release pursuant to this sentence would cause such amount to be exceeded, then the Release Amount shall be as set forth belowin clause (i) of the first sentence of this Section 2.6.2(k). Borrower Any portion of the Release Amount applied to the principal amount of the Debt shall pay be applied first, to reduce the Allocated Loan Amount attributable to the Released Property to zero and second, pro rata to reduce the Allocated Loan Amounts of each of the other remaining Individual Properties. Notwithstanding the foregoing, in the event that Lender has applied the Net Proceeds from a Casualty or reimburse Lender Condemnation of an Individual Property to the repayment of the Debt and a Partial Release of such Individual Property is thereafter completed, (1) the Release Amount for all reasonable costs such Individual Property shall be reduced by the amount of such Net Proceeds so applied, and expenses incurred by Lender (2) no Prepayment Consideration or similar sum shall be due in connection therewith; and
(l) If, in connection with such request for a Partial Release, including, but not limited toBorrower advises Lender that it desires Lender to assign the applicable Security Instrument and other Loan Documents (collectively, the preparation“Assigned Loan Documents”) encumbering the Released Properties that are the subject of a Partial Release (collectively, negotiation the “Assigned Properties”) to a Person designated by Borrower (the “Partial Assignee Lender”), then Lender shall (a) cooperate in all reasonable respects with Borrower (i) to split and review sever each Promissory Note constituting the Note into two Notes, with one such Note (each, a “Remaining Note”) continuing to evidence the portion of any the Loan secured by the Individual Properties that are not Assigned Properties (collectively, the “Remaining Properties”), and all materials required the other such Note (each, an “Assigned Note”) securing the portion of the Loan to be provided secured by the Assigned Properties, and (ii) to assign the Assigned Note and the Assigned Loan Documents to the Partial Assignee Lender, with assignments of the recorded Assigned Loan Documents in connection therewith recordable form and otherwise in form and substance reasonably acceptable to Lender and the Partial Assignee Lender, (b) deliver to the Partial Assignee Lender or as directed by Borrower the originally executed Assigned Note, (c) execute and deliver to the Partial Assignee Lender or as directed by Borrower, (i) an allonge with respect to the Assigned Note, (ii) executed assignments of the recorded Assigned Loan Documents (and the original applicable Assigned Loan Documents or a certified copy of record to the assignee thereof), and (iii) such other instruments of conveyance, assignment, termination, severance and release (including appropriate UCC-3 termination statements and terminations of rent direction notices to Tenants and other third parties), all in recordable form as may reasonably be requested by Borrower to evidence such assignment; provided, however, that such assignment shall be made without representation, warranty or covenant by Lender (other than that Lender is the lawful owner of such Assigned Note and the Assigned Loan Documents, and Lender has the power to assign the same and the outstanding principal balance thereof). In connection with any assignment effected in accordance with this paragraph, Borrower shall deliver the following: (I) New York enforceability and entity authority opinion letters, reasonably required by Lender’s , (II) organizational documents of Borrower, Guarantor and any entities executing documents on behalf of Borrower or Guarantor, as reasonably required by Lender, and (III) such other documents and agreements as may be reasonable attorneys’ fees required by Lender. Notwithstanding anything to the contrary contained in this Section 2.6.2, the parties hereto hereby acknowledge and expensesagree that after the Securitization of the Loan (or any portion thereof or interest therein), with respect to any Lender approval or similar discretionary rights over any matters contained in this Section 2.6.2, such rights shall be construed such that Lender shall only be permitted to withhold its consent or approval with respect to any such matters if the same fails to meet the Prudent Lender Standard.
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