Property Releases. From time to time the Borrower may request that any Collateral Property be released from the Security Documents (a “Property Release”), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to the satisfaction of the following conditions: (i) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing (other than a Default or Event of Default solely with respect to the Collateral Property subject to such Property Release) or would occur as a result of such Property Release; (ii) If any Collateral Property to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (in accordance with this Agreement) such that applicable Collateral Properties may be owned, operated and/or encumbered separately and independently from each other; (iii) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and (iv) The Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date of release. Delivery by the Borrower to the Agent of any such request shall constitute a representation by the Borrower that the foregoing conditions (both as of the date of such request and as of the date of such release) are true and correct with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction of the Requisite Lenders), the Borrower shall deliver to the Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding Clauses (i) through (iii) (together with supporting calculations attached hereto).
Appears in 2 contracts
Sources: Secured Debtor in Possession Term Loan Credit Agreement (Office Properties Income Trust), Secured Debtor in Possession Term Loan Credit Agreement (Office Properties Income Trust)
Property Releases. From time to time After the Lockout Period and provided no Event of Default exists, Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security lien (or at Borrower’s option, an assignment thereof to one or more third parties) of the Mortgage thereon (and the related Loan Documents) and the release of the Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such release or assignment a “Property Release”), upon the satisfaction of each of the following conditions in a manner satisfactory to a prudent mortgage lender:
(a) Borrower shall pay the Release Amount for the applicable Individual Property, and such payment shall be deemed a voluntary prepayment of a portion of the Liens created thereby Loan for all purposes hereunder;
(b) Borrower shall pay to Lender any applicable Prepayment Premium plus, without duplication, interest on such prepaid amount of the Loan through the end of the Interest Period in which such payment or prepayment occurs;
(c) Borrower shall submit to Lender, not less than seven (7) Business Days prior to the extent applicable to such Payment Date on which the Property Release shall be made, a release (or assignment) of the lien of the Mortgage (and related CollateralLoan Documents) for such Individual Property for execution by Lender. Such release (or assignment) shall be in a form appropriate in the jurisdiction in which the Individual Property is located and that contains standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with the Release, together with a Specified Property Salecertificate from an officer of Borrower certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released or assigned (or as to the parties to the Loan Documents and Properties subject to the satisfaction of the following conditions:Loan Documents not being released);
(id) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing (other than a Default or Event of Default solely with respect to the Collateral Property subject After giving effect to such Property Release, the Debt Service Coverage Ratio for the Properties then remaining subject to the lien of the Mortgage shall be equal to or exceed the greater of (i) the Debt Service Coverage Ratio as of the Closing Date or would occur as a result of such (ii) the Debt Service Coverage Ratio immediately prior to the Property Release;
(iie) If any Collateral Property Concurrently with the payment of the Release Amount, New Mezzanine Borrower, if any, shall make a partial prepayment of the related New Mezzanine Loan, if any, equal to be released pursuant the related release amount (as defined in the applicable New Mezzanine Loan Documents), if any, applicable to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Individual Property, then together with any related interest, fees, prepayment premiums or other amounts payable under the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite Lendersrelated New Mezzanine Loan Documents, if any, in their reasonable discretion) that the applicable agreement has been amended or replaced (in accordance connection with this Agreement) such that applicable Collateral Properties may be ownedprepayment, operated and/or encumbered separately and independently from each other;
(iii) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to releaseincluding, to the extent required by such prepayment is made on a date other than a Payment Date, interest which would have accrued on the Agent (acting at the written direction outstanding principal balance of the Requisite Lenders)related New Mezzanine Loan, if any, pursuant to the Agent New Mezzanine Loan Documents;
(f) Borrower shall execute and deliver to Lender any amendments to the Loan Documents reasonably deemed necessary by Lender to affect the Property Release, including adjustments to reserve and escrow accounts which lower the amounts required to be held by Lender as a result of the Property Release;
(g) All reasonable costs and expenses incurred by Lender in connection with such Property Release shall be paid by Borrower. Any assignments made by Lender shall be without recourse, representation or warranty by Lender and shall comply with all applicable law;
(h) the Allocated Loan Amount for the applicable Individual Property, when combined with the Allocated Loan Amount attributable to the other Individual Properties that have been released pursuant to this Section 2.05, shall not represent more than (x) 15% of the original principal amount of the Loan in any given twelve (12) consecutive month period, and (y) in the aggregate, 40% of the original principal amount of the Loan over the entire term of the Loan;
(i) Borrower shall have received provided evidence reasonably satisfactory acceptable to Lender, that it has terminated the Agent (acting at applicable Operating Lease with respect to such Individual Property in accordance with the written direction terms of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, Operating Lease including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned payment by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date of release. Delivery by the Borrower to the Agent applicable Tenant of any compensation owing by Borrower to such request shall constitute a representation by the Borrower that the foregoing conditions (both as of the date of Tenant under such request and as of the date of such release) are true and correct Operating Lease with respect to such the Individual Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction of the Requisite Lenders), the Borrower shall deliver to the Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding Clauses (i) through (iii) (together with supporting calculations attached hereto)being released.
Appears in 2 contracts
Sources: Loan Agreement (Bon Ton Stores Inc), Loan Agreement (Bon Ton Stores Inc)
Property Releases. From time to time the ▇▇▇▇▇▇▇▇.▇.▇▇▇▇▇▇▇▇ Provided that no Event of Default shall then exist, Borrower may request that and may cause Mortgage Borrower to (w) obtain the release of all or any Collateral of the Select Release Properties in connection with a Select Release, (x) obtain the release of all or any of the Prime ROFO Release Properties in connection with a Prime ROFO Release or (y) obtain the release of an Individual Property be released from the Security Documents Lien of the Mortgage thereon (and related Mortgage Loan Documents) (such release, a “Property Release”)) and, and in each case, obtain the Liens created thereby release of the applicable Borrower’s obligations under the Loan Documents (other than those expressly stated to survive) with respect to the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, then being released and, only to the extent applicable such Mortgage Borrower no longer owns any Property, obtain the release of the Collateral related to such Property and related Mortgage Borrower (such obligations or Collateral being released in accordance with the foregoing, the “Released Collateral”), in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(a) The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the applicable Release Price for the applicable Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, being released and such prepayment shall be deemed a voluntary prepayment for all purposes hereunder;
(b) Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of (A) Mortgage Borrower’s request to obtain (i) No Default a release of an Individual Property in respect of connection with a Property Release or a Prime ROFO Release or (ii) to the extent Mortgage Borrower has not yet elected to release all or any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Select Release Properties pursuant to a Select Release, a release of all or any of the Select Release Properties in connection with a Select Release, and (B) its request to obtain the release, if applicable, of the related Released Collateral (the “Release Date”), which notice shall specify the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, that are the subject of such release and whether such release constitutes a Select Release or a Prime ROFO Release (such notice being revocable or may be modified by Borrower under this Agreement on at least two (2) Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and no Event expenses incurred in connection with the notice of Default has occurred intended release). For the avoidance of doubt, Mortgage Borrower’s right to release all or any of the Select Release Properties in connection with a Select Release is a one-time right exercisable at any time during the term of the Mortgage Loan and is continuing (other than a Default or Event of Default solely with respect to the Collateral extent that Mortgage Borrower elects to exercise its one-time right to a Select Release pursuant to and in accordance with the Mortgage Loan Agreement, Mortgage Borrower shall have no further right to make such an election, regardless of whether all of the Select Release Properties were released in connection with such Select Release. Any Select Release Property subject to such not released in connection with a Select Release may be released in accordance with this Section in the same manner as any Individual Property Release) or would occur as in connection with a result of such Property Release;
(iic) If any Collateral Property Borrower shall prepay the portion of the Note equal to be released pursuant to such Property the applicable Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Price of the Individual Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite LendersSelect Release Properties or Prime ROFO Release Properties, in their reasonable discretion) that the applicable agreement has been amended or replaced (in accordance with this Agreement) such that applicable Collateral Properties may be owned, operated and/or encumbered separately and independently from each other;
(iii) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent being released (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid together with all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date of release. Delivery by the Borrower to the Agent of any such request shall constitute a representation by the Borrower that the foregoing conditions (both as of the date of such request and as of the date of such release) are true and correct with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction of the Requisite Lenders), the Borrower shall deliver to the Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding Clauses (i) through (iii) (together with supporting calculations attached hereto).accrued and unpaid interest on the principal amount
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. From time to time the Mortgage Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Documents Lien of the Mortgage thereon (a “and related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Borrower shall have the right to obtain the release of the portion of the Collateral related to such Individual Property Release”being released (other than those expressly stated to survive), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iib) If any Collateral Property The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such Property Release is subject prepayment shall be deemed a voluntary prepayment for all purposes hereunder;
(c) Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to an agreement which restricts such obtain a release of the Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory related to the Agent Individual Property (acting the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the direction notice of intended release);
(d) Borrower shall prepay the portion of the Requisite LendersNote equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on the principal amount being prepaid, in their reasonable discretion(ii) that Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable agreement has been amended or replaced Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with this Agreementthe terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) such that applicable Collateral Properties may hereof) shall, notwithstanding anything to the contrary contained herein, be ownedapplied (A) first, operated and/or encumbered separately to reduce the Allocated Loan Amount of the Individual Property being released to zero and independently from each other(B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(iiie) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused submit to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to releaseLender, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of release. Delivery by Lien (and related Loan Documents) for the Borrower portion of the Collateral related to the Agent Individual Property for execution by Lender. Such release shall be in a form satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of any the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such request release, together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Collateral subject to the Loan Documents not being released). Lender shall constitute a representation deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Borrower Release Date;
(f) After giving effect to such release, Lender shall have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 10.15% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the portion of the Collateral related to the Individual Property from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Mortgage Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Mortgage Borrower (if applicable); and
(i) through Borrower shall have delivered evidence satisfactory to Lender that (iiii) Junior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”).
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. From time to time the Mortgage Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Documents Lien of the Mortgage thereon (a “and related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Borrower shall have the right to obtain the release of the portion of the Collateral related to such Individual Property Release”being released (other than those expressly stated to survive), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iib) If any Collateral Property The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such Property Release is subject prepayment shall be deemed a voluntary prepayment for all purposes hereunder;
(c) Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to an agreement which restricts such obtain a release of the Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory related to the Agent Individual Property (acting the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the direction notice of intended release);
(d) Borrower shall prepay the portion of the Requisite LendersNote equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on the principal amount being prepaid, in their reasonable discretion(ii) that Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable agreement has been amended or replaced Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with this Agreementthe terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) such that applicable Collateral Properties may hereof) shall, notwithstanding anything to the contrary contained herein, be ownedapplied (A) first, operated and/or encumbered separately to reduce the Allocated Loan Amount of the Individual Property being released to zero and independently from each other(B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(iiie) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused submit to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to releaseLender, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of release. Delivery by Lien (and related Loan Documents) for the Borrower portion of the Collateral related to the Agent Individual Property for execution by Lender. Such release shall be in a form satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of any the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such request release, together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Collateral subject to the Loan Documents not being released). Lender shall constitute a representation deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Borrower Release Date;
(f) After giving effect to such release, Lender shall have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 9.95% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the portion of the Collateral related to the Individual Property from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Mortgage Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Mortgage Borrower (if applicable); and
(i) through Borrower shall have delivered evidence satisfactory to Lender that (iiii) Junior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”).
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. From time to time the Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Lien of the Mortgage thereon (and related Loan Documents) and the release of Borrower’s obligations under the Loan Documents with respect to such Individual Property (a “Property Release”other than those expressly stated to survive), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iib) If any Collateral Property The amount of the outstanding principal balance of the Loan to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (prepaid in accordance with this Agreement) the terms hereof shall equal or exceed the Release Price for the applicable Individual Property, and such that applicable Collateral Properties may prepayment shall be owned, operated and/or encumbered separately and independently from each otherdeemed a voluntary prepayment for all purposes hereunder;
(iiic) With respect Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to the obtain a release of any Collateral the Individual Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral PropertyRelease Date”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums (such notice being revocable or other land divisions; may be modified by Borrower on at least two (2) that immediately following such release Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the Remaining Collateral notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property complies in being released (together with all material respects with Applicable Law (i) accrued and has unpaid interest on the benefit of all utilitiesprincipal amount being prepaid, easements(ii) Breakage Costs, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed (iii) Compensating Interest, if applicable and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan Amount of the Individual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(e) Borrower shall have received such written request at least submit to Lender, not less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of Lien (and related Loan Documents) for such Individual Property for execution by Lender. Such release shall be in a form appropriate in each State in which the Individual Property is located and that would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Delivery , together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the Borrower terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the Agent parties to the Loan Documents and Properties subject to the Loan Documents not being released). Lender shall deliver such executed release of any Lien for such request Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(f) After giving effect to such release, Lender shall constitute a representation by the Borrower have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 10.53% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the Individual Property from the lien of the related Mortgage Instrument and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Senior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Senior Mezzanine Borrower if applicable; and
(i) through [Intentionally Omitted]. Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, (iiia) (on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”); and (b) if the Loan is included in a REMIC Trust and the LTV Ratio exceeds or would exceed one hundred twenty five percent (125%) immediately after the release of the applicable Individual Property (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any; provided that Lender shall not require a re-appraisal or a broker’s opinion of value of the Properties if another commercially reasonable method of valuation of the real property permitted to a REMIC Trust is available to Lender at such time including an internally generated valuation), no release will be permitted unless (i) the principal balance of the Loan is prepaid by an amount not less than the greater of (A) the Release Price for the applicable Individual Property or (B) the least of one (1) of the following amounts: (I) only if the released Individual Property is sold, the net proceeds of an arm’s length sale of the released Individual Property, to an unaffiliated Person, (II) the fair market value of the released Individual Property, at the time of the release, or (III) an amount such that the LTV Ratio immediately after the release of the applicable Individual Property is not greater than the LTV Ratio of the Properties immediately prior to such release, or (ii) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the release.
Appears in 1 contract
Property Releases. From time to time the Provided that no Event of Default shall then exist, Borrower may request that and may cause Mortgage Borrower to (w) obtain the release of all or any Collateral of the Select Release Properties in connection with a Select Release, (x) obtain the release of all or any of the Prime ROFO Release Properties in connection with a Prime ROFO Release or (y) obtain the release of an Individual Property be released from the Security Documents Lien of the Mortgage thereon (and related Mortgage Loan Documents) (such release, a “Property Release”)) and, and in each case, obtain the Liens created thereby release of the applicable Borrower’s obligations under the Loan Documents (other than those expressly stated to survive) with respect to the Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, then being released and, only to the extent applicable such Mortgage Borrower no longer owns any Property, obtain the release of the Collateral related to such Property and related Mortgage Borrower (such obligations or Collateral being released in accordance with the foregoing, the “Released Collateral”), in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations The amount of the Borrower under this Agreement outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the applicable Release Price for the applicable Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, being released and no Event of Default has occurred and is continuing (other than such prepayment shall be deemed a Default or Event of Default solely with respect to the Collateral Property subject to such Property Release) or would occur as a result of such Property Releasevoluntary prepayment for all purposes hereunder;
(b) Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of (A) Mortgage Borrower’s request to obtain (i) a release of an Individual Property in connection with a Property Release or a Prime ROFO Release or (ii) If any Collateral Property to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (in accordance with this Agreement) such that applicable Collateral Properties may be owned, operated and/or encumbered separately and independently from each other;
(iii) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction Mortgage Borrower has not yet elected to release all or any of the Requisite LendersSelect Release Properties pursuant to a Select Release, a release of all or any of the Select Release Properties in connection with a Select Release and (B) its request to obtain the release, if applicable, of the related Released Collateral (the “Release Date”), which notice shall specify the Agent shall have received evidence reasonably satisfactory to Individual Property, Select Release Properties or Prime ROFO Release Properties, as applicable, that are the Agent (acting at the written direction subject of the Requisite Lenders) that: (1) the Collateral Property subject to such release and the Collateral Property which shall remain encumbered by the Security Documents immediately following whether such release constitutes a Select Release or a Prime ROFO Release (as used in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums such notice being revocable or other land divisions; may be modified by Borrower on at least two (2) that immediately following such Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the notice of intended release). For the avoidance of doubt, Mortgage Borrower’s right to release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed and recorded in the applicable official records any of the jurisdiction(s) Select Release Properties in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, connection with a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date of release. Delivery by the Borrower to the Agent of any such request shall constitute a representation by the Borrower that the foregoing conditions (both as of the date of such request and as of the date of such release) are true and correct with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction of the Requisite Lenders), the Borrower shall deliver to the Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding Clauses (i) through (iii) (together with supporting calculations attached hereto).Select
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. From time (a) Provided no Event of Default is then continuing and all amounts then due and owing to time Lender as of the date of release have been paid in full, Borrower may request that any Collateral Property be released from shall have the Security Documents right, at its option, on not less than 15 days’ prior written (or such lesser days’ notice as is acceptable to Lender) to Lender, to obtain the release of one or more of the Properties (a “Property Release”), and ) from the Liens created thereby to of the extent applicable to such Property and related Collateral, Loan Documents in connection with a Specified Property Salebona-fide sale to an unaffiliated third party, subject to the satisfaction of provided that the following conditionsconditions shall have been satisfied, to ▇▇▇▇▇▇’s reasonable satisfaction:
(i) No Default Borrower shall prepay the Loan, in respect of any payment obligations owing accordance with Section 2.1, in an amount equal to the applicable Release Price, which prepayment shall be accompanied by the Borrower under this Agreement or other amounts specified in respect of any material non-monetary obligations Section 2.1.
(ii) If 100% of the Net Sales Proceeds exceeds the Release Price, Borrower under this Agreement shall remit such excess (“Excess Release Proceeds”) to Lender for deposit into the Shortfall Reserve Account unless all of the following conditions are satisfied: (A) the amount then contained in the Shortfall Reserve Account is equal to or greater than the Full Shortfall Reserve Amount, (B) the Debt Yield (Multifamily) is greater than 10%, and (C) no Event of Default has occurred and is continuing continuing. If all of the foregoing conditions (other than a Default or Event of Default solely with respect A) through (C) are satisfied, such Excess Release Proceeds (“Distributable Excess Release Proceeds”) shall not be required to be deposited into the Shortfall Reserve Account, shall not be subject to the Collateral prohibition against distributions by Borrower hereunder, and may be distributed by Borrower to Sponsor for any purpose, including special dividends, or used to pay the Duration Fee and/or the Extension Fee.
(iii) The released Property subject shall be conveyed by deed to such a third party that is not an affiliate of Sponsor, Pledgor or Borrower.
(iv) If the Loan has been securitized in a REMIC, then after giving effect to the release of the Property Releaseor Properties, the Lender 125% Determination shall have been satisfied or, if the same is not so satisfied, then Borrower shall have prepaid the Loan in an amount equal to the lesser of (x) the fair market value of the Property or Properties so released (as determined by Lender in its sole discretion using any commercially reasonable method permitted to a REMIC and excluding the value attributable to any property that is not an interest in real property within the meaning of Section 860(G)(a)(3)(A) of the Code) and (y) the amount necessary to obtain a Lender 125% Determination.
(v) If the Loan has been Securitized in a REMIC, Borrower shall deliver to Lender an opinion of counsel in form and substance which would occur be acceptable to a prudent lender of securitized commercial mortgage loans acting reasonably, stating, among other things, that any REMIC trust formed pursuant to a Securitization will not fail to maintain its status as a REMIC as a result of such Property Release;release and will not be subject to tax on any “prohibited transactions” or “prohibited contributions” as a result of such release.
(iivi) If any Collateral Property to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property Upon request from being owned▇▇▇▇▇▇, operated or encumbered independently from another Collateral Property, then the Agent Borrower shall have received evidence in form and substance satisfactory delivered to the Agent (acting at the direction Lender an Officer’s Certificate confirming Borrower’s calculation of the Requisite Lendersapplicable Release Price, the Debt Yield (Multifamily) Threshold, and the recalculated Debt Yield (Multifamily) described in their clause (ii).
(vii) Borrower shall reimburse Lender for any actual reasonable discretion) that the applicable agreement has been amended or replaced (and documented out-of-pocket costs and expenses incurred by Lender in accordance connection with this Agreement) such that applicable Collateral Properties may be owned, operated and/or encumbered separately Section 2.2 (including the reasonable fees and independently from each other;expenses of legal counsel and the reasonable and documented out-of-pocket expenses of the Servicer).
(iiib) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction Upon satisfaction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used requirements set forth in this Section, the “Remaining Collateral Property”) are each separate legal parcels▇▇▇▇▇▇ will execute and deliver to Borrower such instruments, lawfully created prepared by Borrower and describedreasonably approved by ▇▇▇▇▇▇, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining as shall be necessary to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral applicable Property complies in all material respects with Applicable Law and has from the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed and recorded in the applicable official records Liens of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date of release. Delivery by the Borrower to the Agent of any such request shall constitute a representation by the Borrower that the foregoing conditions (both as of the date of such request and as of the date of such release) are true and correct with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction of the Requisite Lenders), the Borrower shall deliver to the Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding Clauses (i) through (iii) (together with supporting calculations attached hereto)Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Elme Communities)
Property Releases. From time to time the Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Lien of the Mortgage thereon (and related Loan Documents) and the release of Borrower’s obligations under the Loan Documents with respect to such Individual Property (a “Property Release”other than those expressly stated to survive), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iib) If any Collateral Property The amount of the outstanding principal balance of the Loan to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (prepaid in accordance with this Agreement) the terms hereof shall equal or exceed the Release Price for the applicable Individual Property, and such that applicable Collateral Properties may prepayment shall be owned, operated and/or encumbered separately and independently from each otherdeemed a voluntary prepayment for all purposes hereunder;
(iiic) With respect Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to the obtain a release of any Collateral the Individual Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral PropertyRelease Date”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums (such notice being revocable or other land divisions; may be modified by Borrower on at least two (2) that immediately following such release Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the Remaining Collateral notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property complies in being released (together with all material respects with Applicable Law (i) accrued and has unpaid interest on the benefit of all utilitiesprincipal amount being prepaid, easements(ii) Breakage Costs, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed (iii) Compensating Interest, if applicable and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan Amount of the Individual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(e) Borrower shall have received such written request at least submit to Lender, not less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of Lien (and related Loan Documents) for such Individual Property for execution by Lender. Such release shall be in a form appropriate in each State in which the Individual Property is located and that would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Delivery , together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the Borrower terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the Agent parties to the Loan Documents and Properties subject to the Loan Documents not being released). Lender shall deliver such executed release of any Lien for such request Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(f) After giving effect to such release, Lender shall constitute a representation by the Borrower have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 9.5% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the Individual Property from the lien of the related Mortgage Instrument and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Senior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Senior Mezzanine Borrower if applicable; and
(i) through Borrower shall have delivered evidence satisfactory to Lender that (iiii) Junior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, (a) on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”); and (b) if the Loan is included in a REMIC Trust and the LTV Ratio exceeds or would exceed one hundred twenty five percent (125%) immediately after the release of the applicable Individual Property (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any; provided that Lender shall not require a re-appraisal or a broker’s opinion of value of the Properties if another commercially reasonable method of valuation of the real property permitted to a REMIC Trust is available to Lender at such time including an internally generated valuation), no release will be permitted unless (i) the principal balance of the Loan is prepaid by an amount not less than the greater of (A) the Release Price for the applicable Individual Property or (B) the least of one (1) of the following amounts: (I) only if the released Individual Property is sold, the net proceeds of an arm’s length sale of the released Individual Property, to an unaffiliated Person, (II) the fair market value of the released Individual Property, at the time of the release, or (III) an amount such that the LTV Ratio immediately after the release of the applicable Individual Property is not greater than the LTV Ratio of the Properties immediately prior to such release, or (ii) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the release.
Appears in 1 contract
Property Releases. From time to time the Borrower may request that any Collateral Property be released from the Security Documents (a “Property Release”), and the Liens created thereby to the extent applicable to such Property and related Collateral, Solely in connection with a Specified release of an Individual Property Sale, subject pursuant to Section 15.1(c)(viii) hereof prior to the earlier of the third (3rd) anniversary of the Closing Date or a REMIC Prohibition Period, Borrower may obtain the release of an Individual Property from the Lien of the Mortgage thereon (and related Loan Documents) and the release of Borrower’s obligations under the Loan Documents with respect to such Individual Property (other than those expressly stated to survive), upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iib) If any Collateral Property The amount of the outstanding principal balance of the Loan to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (prepaid in accordance with this Agreement) the terms hereof shall equal or exceed the Release Price for the applicable Individual Property, and such that applicable Collateral Properties may prepayment shall be owned, operated and/or encumbered separately and independently from each otherdeemed a voluntary prepayment for all purposes hereunder;
(iiic) With respect Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to the obtain a release of any Collateral the Individual Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral PropertyPrepayment Release Date”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums (such notice being revocable or other land divisions; may be modified by Borrower on at least two (2) that immediately following such release Business Days prior written notice to L▇▇▇▇▇ provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the Remaining Collateral notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property complies in being released (together with (a) all material respects with Applicable Law accrued and has unpaid interest on the benefit of all utilities, easements, public and/or private streets, covenants, conditions principal amount being prepaid and restrictions as may be reasonably necessary for the continued operation thereof; (3b) such release shall not materially adversely affect the use or operation of, or access toif prepaid on a date other than a Payment Date, the Remaining Collateral Property; (4) amount of interest which would have accrued thereon if applicablesuch prepayment was made on the next Payment Date, the Borrower shall have caused all additional amounts required to be executed paid by Borrower and recorded in all other amounts owing by Borrower to Lender under the applicable official records of the jurisdiction(s) in which the Collateral Property subject to releaseNote, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release this Agreement and the Remaining Collateral Property has been proportionately allocated between such Propertiesother Loan Documents; provided, provided that separate tax parcels of real property however, Borrower shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues required to pay any consent, processing, administrative or cause similar fee in connection with any prepayment pursuant to be paid all taxesthis Section 2.9(d)) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price shall, charges and assessments related notwithstanding anything to the such contrary contained herein, be applied (A) first, to reduce the Allocated Loan Amount of the Individual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties; and;
(ive) The Agent Borrower shall have received such written request at least submit to Lender, not less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Prepayment Release Date, a release of releaseLien (and related Loan Documents) for such Individual Property for execution by L▇▇▇▇▇. Delivery by Such release shall be in a form appropriate in each State in which the Borrower Individual Property is located and that would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the Agent of any such request shall constitute a representation by the Borrower that the foregoing conditions (both as rights of the date of such request and as of the date of releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release) are true and correct , together with respect to a certification certifying that such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction of the Requisite Lenders), the Borrower shall deliver to the Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding Clauses documentation (i) through is in compliance with all applicable Legal Requirements, (ii) will, following execution by L▇▇▇▇▇ and recordation thereof, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (together or as to the parties to the Loan Documents and Properties subject to the Loan Documents not being released). Lender shall deliver such executed release of Lien for such Individual Property to Borrower on or prior to the Prepayment Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Prepayment Release Date; and
(f) Lender shall have received payment of (i) the Yield Maintenance Premium and (ii) all of Lender’s reasonable, out-of-pocket costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with supporting calculations attached heretothe release of the Individual Property from the lien of the related Mortgage and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9, except for (i) accrued and unpaid interest on the principal amount being prepaid, (ii) if prepaid on a date other than a Payment Date, the amount of interest which would have accrued thereon if such prepayment was made on the next Payment Date, all additional amounts required to be paid by Borrower and all other amounts owing by Borrower to Lender under the Note, this Agreement and the other Loan Documents and (iii) the Yield Maintenance Premium.
(g) Notwithstanding the foregoing provisions of this Section 2.9, for so long as the Loan is included in a REMIC Trust in connection with a Securitization, no release of an Individual Property will be permitted unless, immediately after the release, either (i) the LTV Ratio is equal to or less than one hundred twenty-five percent (125%) (such value to be determined, in L▇▇▇▇▇’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any) or (ii) the principal balance of the Loan is paid down by the least of the following amounts: (A) the fair market value of the Individual Property at the time of release, or (B) an amount such that the LTV Ratio (as so determined by Lender) does not increase after the release to greater than one hundred twenty-five percent (125%), as calculated in accordance with the foregoing clause (c)(i), unless the Lender receives an opinion of counsel that such Securitization will not fail to maintain its status as a REMIC Trust as a result of the release.
Appears in 1 contract
Property Releases. From (a) So long as no Event of Default is then continuing (other than an Event of Default that would be eliminated after giving effect to the release of the Mortgaged Property proposed to be released pursuant to Section 7.1(m)), Borrower may from time to time cause Property Owner to obtain the release of one or more of the Mortgaged Properties from the Liens of the Mortgage Loan Documents and cause Property Owner to Transfer such Mortgaged Property to an unaffiliated third party in an arms’-length transaction (except that, if the release is being effectuated pursuant to the provisions of Section 7.1(m), Borrower may request that any Collateral cause Property be released from the Security Documents (a “Owner to Transfer such Mortgaged Property Release”), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to the an Affiliate of Borrower) upon satisfaction of the following conditions:
(i) No Default Borrower shall deliver to Lender notice (a “Release Notice”) of its intent to cause Property Owner to release one or more of the Mortgaged Properties, which notice must be given at least 10 Business Days and not more than 60 days prior to the Business Day upon which the release is to be made and shall specify the Mortgaged Property or Mortgaged Properties that Borrower intends to cause Property Owner to release. Borrower shall promptly reimburse Lender for any actual out-of-pocket costs and expenses (including the reasonable fees and expenses of legal counsel and the Servicer) incurred by Lender in respect connection with a release pursuant to this Section 2.2.
(ii) At the time of such release: (1) Borrower shall prepay a portion of the Loan, in accordance with Section 2.1, in an amount equal to (x) subject to Section 2.2(c), the applicable Release Price, plus (y) any additional amount required to be prepaid in accordance with Section 2.2(c) in order to reduce the Release Price Deficit, which prepayment, in each case under clauses (x) and (y), shall be accompanied by the applicable Spread Maintenance Amount, which prepayment shall be accompanied by the other amounts specified in Section 2.1, to the extent applicable (and without duplication of any payment obligations owing amounts otherwise payable by the Borrower under this Agreement Agreement) and (2) DSCR for the Fiscal Quarter then most recently ended, recalculated to include only income and expense attributable to the Mortgaged Properties remaining after the release and to exclude the interest expense and principal payments on the aggregate amount to be prepaid, shall be equal to or in respect of any material non-monetary obligations of greater than the Borrower under this Agreement and no Event of Default has occurred and is continuing (other than a Default or Event of Default solely applicable DSCR Threshold; provided, however, that, except with respect to a release of a Mortgaged Property pursuant to Section 7.1(m), the Collateral DSCR Threshold need not be satisfied if at the time of such sale Borrower (I) prepays the Loan in an amount set forth in clause (1) above, (II) causes Property Owner to deposit 100% of any remaining Excess Transfer Proceeds, after payment of the amount required under clause (1)(y) above and the corresponding sections of the Mortgage Loan Agreement and each of the Junior Mezzanine Loan Agreements, into the Mortgage Loan Cash Reserve Account as additional collateral for the Loan (for the avoidance of doubt, any release of a Mortgaged Property pursuant to Section 7.1(m) shall be subject to the satisfaction of the DSCR Threshold, and Borrower shall not be released from such requirement by causing Property ReleaseOwner to deposit 100% of the Excess Transfer Proceeds as set forth in clause (II) above) and (III) during the continuance of the Spread Maintenance Period, pays, or would occur causes to be paid, to Lender, Mortgage Lender and each Junior Mezzanine Lender the applicable Spread Maintenance Amount on the amount so deposited into the Mortgage Loan Cash Reserve Account as if the Loan, the Mortgage Loan and the Junior Mezzanine Loans had been prepaid in such amount on a result pro rata basis pursuant to clause (z) of the following sentence. Following such deposit, Borrower shall, in its sole discretion, have the option to either (y) maintain the Excess Transfer Proceeds in the Mortgage Loan Cash Reserve Account as additional collateral for the Loan or (z) cause all or any portion of the Excess Transfer Proceeds to be applied toward prepayment of the Loan, the Mortgage Loan and the Junior Mezzanine Loans, pro rata in proportion to their respective principal amounts, which prepayments shall be made in accordance with Section 2.1 hereof and the corresponding sections of the Mortgage Loan Documents and the Junior Mezzanine Loan Documents (except that the Spread Maintenance Amount, which shall have been paid upon deposit of funds into the Mortgage Loan Cash Reserve Account, need not be paid a second time upon prepayment).
(iii) Lender shall have received a payoff letter or written confirmation from Mortgage Lender and each Junior Mezzanine Lender that satisfactory escrow arrangements in connection with the release of such Mortgaged Property Releasehave been established.
(b) Immediately upon satisfaction of the requirements in Sections 2.2(a)(i) and (ii), upon request of and at the sole cost and expense of Borrower, Lender shall provide to Mortgage Lender written confirmation that satisfactory escrow arrangements in connection with the release of such Mortgaged Property have been established. Any Mortgaged Property released from the Liens of the Mortgage Loan Documents pursuant to this Section 2.2 or Section 7.1(m) shall, effective upon such release, no longer be deemed a “Mortgaged Property” or a “Property” for any purpose of this Agreement or the other Loan Documents.
(c) Notwithstanding anything herein to the contrary, if the Net Proceeds of a Transfer of a Mortgaged Property are less than the sum of its Minimum Release Price and its aggregate “Minimum Release Price” under and as defined in the Mortgage Loan Agreement and each of the Junior Mezzanine Loan Agreements, then the amount payable by Borrower under Section 2.2(a)(ii)(1)(x) in connection with its release shall be the Mezzanine A Loan Percentage of such Net Proceeds, subject to the following:
(i) the Release Price Deficit (as defined below) may not at any time exceed 2% of the Principal Indebtedness;
(ii) If any Collateral Property after prepayments have been made that reduce the Principal Indebtedness to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction one-half of the Requisite LendersLoan Amount, no release of a Mortgaged Property shall be permitted that would result in their reasonable discretion) that any increase in the applicable agreement has been amended or replaced (in accordance with this Agreement) such that applicable Collateral Properties may be owned, operated and/or encumbered separately and independently from each other;Release Price Deficit; and
(iii) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, if and to the extent required by the Agent (acting at the written direction Release Price Deficit is greater than zero, all Excess Transfer Proceeds shall be applied toward prepayment of the Requisite Lenders)Loan, the Agent shall have received evidence reasonably satisfactory Mortgage Loan and each Junior Mezzanine Loan in proportion to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release Release Price Deficit and the Collateral Property which shall remain encumbered by “Release Price Deficits” under and as defined in the Security Documents immediately following such release (as used in this SectionMortgage Loan and each Junior Mezzanine Loan Agreement, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and describedrespectively, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining each case until reduced to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date of release. Delivery by the Borrower to the Agent of any such request shall constitute a representation by the Borrower that the foregoing conditions (both as of the date of such request and as of the date of such release) are true and correct with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction of the Requisite Lenders), the Borrower shall deliver to the Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding Clauses (i) through (iii) (together with supporting calculations attached hereto)zero.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (W2007 Grace Acquisition I Inc)
Property Releases. From (a) So long as no Event of Default is then continuing and all amounts then due and owing to Lender have been paid in full, Borrower may from time to time obtain the Borrower may request that any Collateral Property be released release of one or more of the Properties or direct or indirect equity interests therein from the Security Liens of the Loan Documents (a “Property Release”), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property sale to an unaffiliated third-party in an arms’-length transaction or a Permitted Affiliate Sale, subject to provided that: (1) at the satisfaction time of the following conditions:
such release (i) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and but provided that no Event of Default has occurred and is continuing continuing, not in connection with the transfer of any Disposition Asset), Borrower shall prepay the Loan in accordance with Section 2.1 in an amount equal to the applicable Release Price, plus any additional amount required to be prepaid in accordance with Section 2.2(c) in order to reduce the Release Price Deficit, which aggregate prepayment shall be accompanied by the other amounts specified in Section 2.1, including the applicable Prepayment Fee if such prepayment is made prior to the Par Prepayment Date, (other than a Default or Event of Default solely 2) except with respect to the Collateral Property subject sale of the ▇▇▇▇ Portfolio to an unaffiliated third party, DSCR for the Test Period most recently ended, recalculated to include only income and expense attributable to Borrower’s interest in the Properties remaining after the contemplated release and to exclude the interest expense and principal payments on the aggregate amount to be prepaid, shall be equal to or greater than DSCR immediately prior to such Property Releaserelease (as reasonably determined by Lender) or would occur as (for these purposes, in the case of the sale of a result of such Property Release;
(ii) If any Collateral Property to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Mortgage Loan Collateral Property, then DSCR shall be adjusted to ignore the Agent shall have received evidence effect of so-called “rate creep” resulting from the fact that the prepayment of the Loan and the Mortgage Loan will not result in form and substance satisfactory a pro-rata reduction of their respective principal amounts), (3) after giving effect to such release, the sum of all Allocated Loan Amounts of each Property directly or indirectly subject to the Agent (acting at the direction Lien of the Requisite Lenders, Loan Documents that constitutes Senior Collateral (without duplication) shall not be less than 120% of the Principal Indebtedness and (4) Borrower shall reimburse Lender for any actual reasonable out-of-pocket costs and expenses incurred by Lender in their reasonable discretion) that the applicable agreement has been amended or replaced (in accordance connection with this AgreementSection 2.2 (including the reasonable fees and expenses of legal counsel and the Servicer). Notwithstanding anything to the contrary in this Section 2.2(a) such that applicable Collateral Properties may (x) the release price for a Disposition Asset shall be ownedzero, operated and/or encumbered separately subject to the requirement specified in Section 2.1(c)(iii), and independently from each other;
the foregoing requirements set forth in clauses (iii1) With through (4) inclusive shall not apply, (y) with respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders)Joint Venture Property, the Agent Release Price applicable to such Property shall have received evidence reasonably satisfactory be adjusted to reflect the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed and recorded Joint Venture Owner’s percentage interest in the applicable official records of the jurisdiction(s) in which the Collateral Joint Venture Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date of release. Delivery by the Borrower to the Agent of any such request shall constitute a representation by the Borrower that the foregoing conditions (both as of the date of any such request release and as (z) the release price for any asset acquired by a Borrower from and after the date hereof (to the extent Borrower is permitted to acquire any such asset pursuant this Agreement) shall be zero, and the foregoing requirements set forth in clauses (1) through (4) inclusive shall not apply.
(b) Upon satisfaction of the date requirements set forth in Sections 2.1 and 2.2, Lender will execute and deliver to Borrower such instruments, prepared by Borrower and approved by Lender, as shall be necessary to release the applicable Property or Properties from the Liens of the Loan Documents or to assign the applicable portion of such releaseLiens to a third party to the extent necessary to avoid the incurrence of mortgage recording taxes.
(c) Notwithstanding anything herein to the contrary, in the case of a sale of a Property to an unaffiliated third party in an arms’-length transaction, if the Net Proceeds are true and correct less than the amount specified in clause (B)(x) of the definition of “Unaffiliated Release Price”, then the amount of principal payable by Borrower under Section 2.2(a)(1) in connection with respect to the release of such Property Release. Without limiting the foregoingshall be 100% of such Net Proceeds, upon the Agent’s request (acting at the written direction of the Requisite Lenders), the Borrower shall deliver subject to the Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding Clauses following:
(i) through the Release Price Deficit (iiias defined below) may not at any time exceed $30,000,000; and
(together ii) if and to the extent the Release Price Deficit is greater than zero, all Excess Transfer Proceeds shall be applied toward prepayment of the Loan in accordance with supporting calculations attached hereto)Section 2.1 (and shall be accompanied by any applicable Prepayment Fee) until the Release Price Deficit is reduced to zero.
Appears in 1 contract
Property Releases. From time to time the Mortgage Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Documents Lien of the Mortgage thereon (a “and related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Borrower shall have the right to obtain the release of the portion of the Collateral related to such Individual Property Release”being released (other than those expressly stated to survive), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iib) If any Collateral Property The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such Property Release is subject prepayment shall be deemed a voluntary prepayment for all purposes hereunder;
(c) Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to an agreement which restricts such obtain a release of the Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory related to the Agent Individual Property (acting the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the direction notice of intended release);
(d) Borrower shall prepay the portion of the Requisite LendersNote equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on the principal amount being prepaid, in their reasonable discretion(ii) that Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable agreement has been amended or replaced Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with this Agreementthe terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) such that applicable Collateral Properties may hereof) shall, notwithstanding anything to the contrary contained herein, be ownedapplied (A) first, operated and/or encumbered separately to reduce the Allocated Loan Amount of the Individual Property being released to zero and independently from each other(B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(iiie) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused submit to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to releaseLender, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of release. Delivery by Lien (and related Loan Documents) for the Borrower portion of the Collateral related to the Agent Individual Property for execution by Lender. Such release shall be in a form satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of any the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such request release, together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Collateral subject to the Loan Documents not being released). Lender shall constitute a representation deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Borrower Release Date;
(f) After giving effect to such release, Lender shall have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 10.53% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the portion of the Collateral related to the Individual Property from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Mortgage Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Mortgage Borrower (if applicable); and
(i) through (iii[Intentionally Omitted]. Notwithstanding anything in Section 2.6(a) (or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”).
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. From time (a) On or after the Lockout Period, provided no Event of Default (other than an Event of Default that would be cured by the release of the applicable Permitted Release Parcel), is then continuing and all amounts then due and owing to time Lender have been paid in full, Borrower shall have the Borrower may request that any Collateral Property be released right, at its option, on not less than 30 days’ prior written notice to Lender, to obtain the release of one or more of the Permitted Release Parcels from the Security Documents (a “Property Release”), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to the satisfaction of the Loan Documents, provided that the following conditionsconditions shall have been satisfied:
(i) No Default such release shall be in respect connection with in connection with an arms’-length sale of any payment obligations owing by one or more Permitted Release Parcels to a Person that is not an affiliate of Borrower;
(ii) Borrower shall Defease the Borrower under this Agreement or Loan, in respect of any material non-monetary obligations accordance with Section 2.1, in an amount equal to the Release Price applicable to such Permitted Release Parcels;
(iii) DSCR for the Test Period then most recently ended, recalculated to include only income and expense attributable to the Properties remaining after the contemplated release and to exclude the interest expense on the aggregate amount Defeased, shall be no less than the DSCR Threshold; and provided further;
(iv) after giving effect to the release of the Property or Properties, the Lender 80% Determination shall have been satisfied;
(v) if the Loan has been Securitized, Borrower under this Agreement shall deliver to Lender an opinion of counsel in form and no Event substance which would be acceptable to a prudent lender of Default has occurred and is continuing (securitized commercial mortgage loans acting reasonably, stating, among other than things, that any REMIC Trust formed pursuant to a Default or Event of Default solely with respect Securitization will not fail to the Collateral Property subject to such Property Release) or would occur maintain its status as a REMIC as a result of such Property Releaserelease and will not be subject to tax on any “prohibited transactions” or “prohibited contributions” as a result of such release;
(iivi) If Borrower shall reimburse Lender for any Collateral Property to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then actual out-of-pocket costs and expenses incurred by Lender in connection with this Section 2.2 (including the Agent shall have received evidence in form reasonable fees and substance satisfactory to expenses of legal counsel and the Agent (acting at the direction reasonable out-of-pocket expenses of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (in accordance with this Agreement) such that applicable Collateral Properties may be owned, operated and/or encumbered separately and independently from each otherServicer);
(iiivii) With respect a Form T-38 endorsement to the Title Insurance Policies addressing the release of any Collateral the Properties;
(viii) if reasonably requested by Lender, an updated survey of the Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property does not then subject to release, to include the extent required by the Agent Permitted Release Parcel;
(acting at the written direction of the Requisite Lenders), the Agent shall have received evidence ix) reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: evidence that (1) such Permitted Release Parcel has been legally subdivided from the Collateral Property subject remainder of the Properties or otherwise constitutes a separate legal parcel in compliance with Legal Requirements; (2) after giving effect to release such release, each of the Permitted Release Parcel and the Collateral Property which shall remain encumbered by balance of the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created Properties conforms to and described, is in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereofLegal Requirements; (3) after giving effect to such release, each of the Permitted Release Parcel and the balance of the Properties constitute separate tax lots; and (4) the Permitted Release Parcel is not necessary for the Property to comply with any zoning, building, land use or parking or other Legal Requirements applicable to the Property or for the then current use of the Property, including without limitation for access, driveways, parking, utilities or drainage or, to the extent that such Permitted Release Parcel is necessary for any such purpose, a reciprocal easement agreement or other agreement reasonably acceptable to Lender has been executed and recorded or any reciprocal easement agreement in place at Closing has been amended and recorded, in each case, that would allow the owners of the Properties to continue to use the Permitted Release Parcel to the extent necessary for such purpose, in which case Lender shall, at Borrower’s sole cost and expense, reasonably cooperate by executing customarily required mortgage consents, reasonably acceptable to Lender;
(x) reasonably satisfactory evidence that Borrower has complied with any requirements applicable to the release in the Leases, reciprocal easement agreements, operating agreements, parking agreements or other similar agreements affecting the Property and such release shall not materially adversely affect violate any of the use provisions of any such documents in any respect that would result in a termination (or operation ofgive any other party thereto the right to terminate), extinguishment or access toother loss of material rights of Borrower or in a material increase in Borrower’s obligations under such documents;
(b) Upon satisfaction of the requirements set forth in this Section 2.2, Lender will execute and deliver to Borrower such instruments, prepared by Borrower and reasonably approved by Lender, as shall be necessary to release the Remaining Collateral Property; applicable Property from the Liens of the Loan Documents, and to release the applicable Borrower from all further liabilities and obligations under the Loan Documents (4) if applicable, other than those expressly provided to survive repayment). Thereafter the “Borrower” hereunder shall exclude the Borrower shall have caused to be executed and recorded in that owned the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) released Permitted Release Parcel so long as the such Borrower does not own any other Property that is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related subject to the such Properties; and
(iv) The Agent Liens of the Loan. Any rents or other income from the released Permitted Release Parcel that is thereafter inadvertently paid or deposited into the Lockbox Account or the Cash Management Account shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable promptly released to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date of release. Delivery by the Borrower to the Agent of any such request shall constitute a representation by the Borrower that the foregoing conditions (both as of the date of such request and as of the date of such release) are true and correct with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction of the Requisite Lenders), the Borrower shall deliver to the Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding Clauses (i) through (iii) (together with supporting calculations attached hereto)applicable Borrower.
Appears in 1 contract
Sources: Loan Agreement (Parkway, Inc.)
Property Releases. From time to time the Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Lien of the Mortgage thereon (and related Loan Documents) and the release of Borrower’s obligations under the Loan Documents with respect to such Individual Property (a “Property Release”other than those expressly stated to survive), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iib) If any Collateral Property The amount of the outstanding principal balance of the Loan to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (prepaid in accordance with this Agreement) the terms hereof shall equal or exceed the Release Price for the applicable Individual Property, and such that applicable Collateral Properties may prepayment shall be owned, operated and/or encumbered separately and independently from each otherdeemed a voluntary prepayment for all purposes hereunder;
(iiic) With respect Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to the obtain a release of any Collateral the Individual Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral PropertyRelease Date”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums (such notice being revocable or other land divisions; may be modified by Borrower on at least two (2) that immediately following such release Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the Remaining Collateral notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property complies in being released (together with all material respects with Applicable Law (i) accrued and has unpaid interest on the benefit of all utilitiesprincipal amount being prepaid, easements(ii) Breakage Costs, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed (iii) Compensating Interest, if applicable and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan Amount of the Individual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(e) Borrower shall have received such written request at least submit to Lender, not less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of Lien (and related Loan Documents) for such Individual Property for execution by Lender. Such release shall be in a form appropriate in each State in which the Individual Property is located and that would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Delivery , together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the Borrower terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the Agent parties to the Loan Documents and Properties subject to the Loan Documents not being released). Lender shall deliver such executed release of any Lien for such request Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(f) After giving effect to such release, Lender shall constitute a representation by the Borrower have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 9.95% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the Individual Property from the lien of the related Mortgage Instrument and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Senior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Senior Mezzanine Borrower if applicable; and
(i) through Borrower shall have delivered evidence satisfactory to Lender that (iiii) Junior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, (a) on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”); and (b) if the Loan is included in a REMIC Trust and the LTV Ratio exceeds or would exceed one hundred twenty five percent (125%) immediately after the release of the applicable Individual Property (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any; provided that Lender shall not require a re-appraisal or a broker’s opinion of value of the Properties if another commercially reasonable method of valuation of the real property permitted to a REMIC Trust is available to Lender at such time including an internally generated valuation), no release will be permitted unless (i) the principal balance of the Loan is prepaid by an amount not less than the greater of (A) the Release Price for the applicable Individual Property or (B) the least of one (1) of the following amounts: (I) only if the released Individual Property is sold, the net proceeds of an arm’s length sale of the released Individual Property, to an unaffiliated Person, (II) the fair market value of the released Individual Property, at the time of the release, or (III) an amount such that the LTV Ratio immediately after the release of the applicable Individual Property is not greater than the LTV Ratio of the Properties immediately prior to such release, or (ii) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the release.
Appears in 1 contract
Property Releases. From (a) So long as no Event of Default or material monetary Default is then continuing, any Obligor may from time to time obtain the Borrower may request that any Collateral Property be released release of one or more of its Properties (each, a "Released Property") from the Security Liens of the Loan Documents and, to the extent after such release such Obligor no longer owns any Property subject to the Loan or any Defeasance Collateral, Lender shall release such Obligor from all liabilities and obligations arising under the Loan Documents which by their terms do not survive repayment of the Loan, provided the following conditions are met with respect to each such Property:
(i) the Borrowers shall (x) prepay any Loan or portion thereof to the extent permitted hereunder, or repay any Loan at maturity or repay the Seven-Year Fixed Rate Principal Reduction when due, and/or (y) Defease all or a “Property Release”)portion of any Fixed Rate Loan in the manner described in clause (ii) below, in such proportions as the Borrowers shall elect, provided that the sum of the amount of such Notes so prepaid or repaid, as the case may be, and the Liens created thereby amount of the Fixed Rate Loans so Defeased shall be equal to, or if the Borrowers elect, greater than, the applicable Release Price;
(ii) if the Borrowers elect to Defease all or any portion of any Fixed Rate Loan, the Borrowers shall deliver the following to or at the direction of Lender with respect to Fixed Rate Notes evidencing such Fixed Rate Loan (in the case of a partial Defeasance of a Fixed Rate Loan, each such Defeasance shall be applied toward the applicable Fixed Rate Notes sequentially (i.e., first to the extent applicable Fixed Rate Note corresponding to such Property the highest-rated Certificate in the Securitization until it has been Defeased in full, next to the Fixed Rate Note corresponding to the second-highest rated Certificate in the Securitization until it has been Defeased in full, and related Collateralso on)):
(1) Defeasance Collateral sufficient to provide payments on or prior to, and in any event as close as possible to, all successive Payment Dates through the third Payment Date prior to the Seven-Year Maturity Date or the Ten-Year Maturity Date, as the case may be, in connection an amount sufficient (x) to pay the interest and scheduled principal (including the Seven Year Fixed Rate Loan Principal Reduction, if applicable) due on such Payment Dates on the portion of such Fixed Rate Note that is Defeased and (y) to repay the unamortized portion of such portion of such Fixed Rate Note on the third Payment Date prior to the Seven-Year Maturity Date or the Ten-Year Maturity Date, as the case may be;
(2) written confirmation from an independent certified public accounting firm that such Defeasance Collateral is sufficient to provide the payments described in clause (1) above;
(3) a security agreement, in form and substance reasonably satisfactory to Lender, the Borrowers and the Rating Agencies, creating in favor of Lender a first priority perfected security interest in such Defeasance Collateral (a "Defeasance Pledge Agreement");
(4) an opinion of counsel for the Borrowers, in form and substance reasonably satisfactory to Lender and delivered by counsel reasonably satisfactory to Lender (and Lender hereby confirms that such opinion from Piper Marbury Rudnick & Wolfe shall be acceptable counse▇), ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Def▇▇▇▇▇ce Pledge Agreement has been duly authorized and is enforceable against the applicable Borrower in accordance with its terms (subject to customary qualifications) and that Lender has a Specified Property Saleperfected first priority security interest in such Defeasance Collateral (subject to customary qualifications);
(5) such other customary certificates, subject opinions, documents or instruments as Lender and the Rating Agencies may reasonably request; and
(6) each of the Rating Agencies shall have delivered Rating Confirmation with respect to the satisfaction of the following conditions:
(i) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing (other than a Default or Event of Default solely with respect to the Collateral Property subject to such Property Release) or would occur as a result of such Property Release;
(ii) If any Collateral Property to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (in accordance with this Agreement) such that applicable Collateral Properties may be owned, operated and/or encumbered separately and independently from each other;foregoing requirements.
(iii) With respect to the release of any Collateral Property Fixed Rate Note that is dependent uponpartially Defeased, assessed the Obligors shall execute and deliver all documents necessary to amend and restate such Fixed Rate Note with or otherwise reliant on any other Collateral Property not then subject to release, two substitute notes: one note having a principal balance equal to the extent required by the Agent (acting at the written direction Defeased portion of the Requisite Lenders), original Fixed Rate Note (the Agent shall have received evidence reasonably satisfactory "Defeased Note") and one note having a principal balance equal to the Agent (acting at the written direction undefeased portion of the Requisite Lenders) that: original Fixed Rate Note (1) the Collateral Property "Undefeased Note"). The Undefeased Note may be the subject to release and of a further Defeasance in accordance with the Collateral Property which shall remain encumbered by terms of this Section 2.2 (the Security Documents immediately following such release (term "Fixed Rate Note", as used in this SectionSection 2.2, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining being deemed to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable refer to the Agent (acting at Undefeased Note that is the written direction subject of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date of release. Delivery by the Borrower to the Agent of any such request shall constitute a representation by the Borrower that the foregoing conditions (both as of the date of such request and as of the date of such release) are true and correct with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction of the Requisite Lenders), the Borrower shall deliver to the Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding Clauses (i) through (iii) (together with supporting calculations attached heretofurther Defeasance).
Appears in 1 contract
Property Releases. From time to time the Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Lien of the Mortgage thereon (and related Loan Documents) and the release of Borrower’s obligations under the Loan Documents with respect to such Individual Property (a “Property Release”other than those expressly stated to survive), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iib) If any Collateral Property The amount of the outstanding principal balance of the Loan to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (prepaid in accordance with this Agreement) the terms hereof shall equal or exceed the Release Price for the applicable Individual Property, and such that applicable Collateral Properties may prepayment shall be owned, operated and/or encumbered separately and independently from each otherdeemed a voluntary prepayment for all purposes hereunder;
(iiic) With respect Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to the obtain a release of any Collateral the Individual Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral PropertyRelease Date”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums (such notice being revocable or other land divisions; may be modified by Borrower on at least two (2) that immediately following such release Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the Remaining Collateral notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property complies in being released (together with all material respects with Applicable Law (i) accrued and has unpaid interest on the benefit of all utilitiesprincipal amount being prepaid, easements(ii) Breakage Costs, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed (iii) Compensating Interest, if applicable and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan Amount of the Individual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(e) Borrower shall have received such written request at least submit to Lender, not less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of Lien (and related Loan Documents) for such Individual Property for execution by Lender. Such release shall be in a form appropriate in each State in which the Individual Property is located and that would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Delivery , together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the Borrower terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the Agent parties to the Loan Documents and Properties subject to the Loan Documents not being released). Lender shall deliver such executed release of any Lien for such request Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(f) After giving effect to such release, Lender shall constitute a representation by the Borrower have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 10.15% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the Individual Property from the lien of the related Mortgage Instrument and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Senior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Senior Mezzanine Borrower if applicable; and
(i) through Borrower shall have delivered evidence satisfactory to Lender that (iiii) Junior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, (a) on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”); and (b) if the Loan is included in a REMIC Trust and the LTV Ratio exceeds or would exceed one hundred twenty five percent (125%) immediately after the release of the applicable Individual Property (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any; provided that Lender shall not require a re-appraisal or a broker’s opinion of value of the Properties if another commercially reasonable method of valuation of the real property permitted to a REMIC Trust is available to Lender at such time including an internally generated valuation), no release will be permitted unless (i) the principal balance of the Loan is prepaid by an amount not less than the greater of (A) the Release Price for the applicable Individual Property or (B) the least of one (1) of the following amounts: (I) only if the released Individual Property is sold, the net proceeds of an arm’s length sale of the released Individual Property, to an unaffiliated Person, (II) the fair market value of the released Individual Property, at the time of the release, or (III) an amount such that the LTV Ratio immediately after the release of the applicable Individual Property is not greater than the LTV Ratio of the Properties immediately prior to such release, or (ii) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the release.
Appears in 1 contract
Property Releases. From time (a) Provided no Event of Default is then continuing and all Indebtedness then due and owing to time Lender has been paid in full, Borrower shall have the Borrower may request that any Collateral Property be released right, at its option, on not less than 30 days’ prior written notice to Lender, to obtain the release of one or more of the Properties from the Security Documents (a “Property Release”), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to the satisfaction of the Loan Documents, provided that the following conditionsconditions shall have been satisfied:
(i) No Default Borrower shall prepay the Loan, pursuant to, and in respect accordance with, Section 2.1, in an amount equal to the applicable Release Price, which prepayment shall be accompanied by all other amounts required to be paid in connection with such prepayment pursuant to Section 2.1;
(ii) Borrower shall reimburse Lender for any actual out-of-pocket costs and expenses incurred by Lender in connection with this Section 2.3 (including the reasonable fees and expenses of any payment obligations owing by legal counsel and the Borrower under this Agreement or in respect of any material nonreasonable out-monetary obligations of-pocket expenses of the Borrower under this Agreement and no Event of Default has occurred and is continuing Servicer);
(other than a Default or Event of Default solely with respect iii) after giving effect to the Collateral release of the Property subject or Properties, Debt Yield for the Test Period then most recently ended, recalculated to include only income and expense attributable to the Properties remaining after the contemplated release and to exclude the interest expense on the aggregate amount to be prepaid in connection with such Property Releaserelease, shall be no less than the Debt Yield Threshold;
(iv) or if the Loan has been Securitized in a REMIC trust, Borrower shall either (x) deliver to Lender an opinion of counsel in form and substance which would occur be acceptable to a prudent lender of securitized commercial mortgage loans acting reasonably, stating, among other things, that any REMIC Trust formed pursuant to a Securitization will not fail to maintain its status as a REMIC as a result of such Property Release;
(ii) If any Collateral Property to release and will not be released pursuant to such Property Release is subject to an agreement which restricts tax on any “prohibited transactions” or “prohibited contributions” as a result of such Collateral Property from being owned, operated release or encumbered independently from another Collateral Property, then the Agent shall have received (y) deliver evidence in form and substance reasonably satisfactory to the Agent (acting at the direction of the Requisite LendersLender that, in their reasonable discretion) that the applicable agreement has been amended or replaced (in accordance with this Agreement) such that applicable Collateral Properties may be owned, operated and/or encumbered separately and independently from each other;
(iii) With respect after giving effect to the release of any Collateral the Property that or Properties, the Lender 80% Determination shall have been satisfied (or, if the same is dependent uponnot so satisfied, assessed with then Borrower shall have prepaid the Loan in an amount equal to the lesser of (x) the fair market value of the Property or otherwise reliant on any other Collateral Property not then subject Properties so released and (y) the amount necessary to release, obtain a Lender 80% Determination); and
(v) to the extent required by that the Agent (acting at applicable Borrower shall continue to own one or more Properties that have not theretofore been released from the written direction Liens of the Requisite Lenders)Loan Documents, after giving effect to the release of the Property or Properties, the Agent Property or Properties so released shall have received evidence reasonably satisfactory be owned by a Person that is not a Borrower.
(b) Notwithstanding anything to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used contrary contained in this Section, in the “Remaining Collateral Property”event that a default shall occur under a Ground Leased Parcel, which default results in a Default, Borrower shall be permitted to cure any such Default by obtaining a release of the applicable Ground Leased Parcel pursuant to Section 2.3(a) are each separate legal parcels(excluding, lawfully created and describedsolely for purposes of this Section 2.3(b), the Debt Yield requirement set forth in Section 2.3(a)(iii)), provided that the default under the applicable Ground Lease shall not have been caused by, or left uncured by, Borrower for the purpose of circumventing the same.
(c) For the avoidance of doubt, in compliance in all material respects connection with Applicable Laws, including, without limitation, applicable ordinances pertaining any release of a Property pursuant to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access tothis Section 2.3, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed and recorded direct interests in the applicable official records of the jurisdiction(sBorrower and its related Single-Purpose Equityholder (if applicable) in which the Collateral Property subject may be transferred to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes Person that is not a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such PropertiesBorrower, provided that separate tax parcels (i) such Borrower does not continue to own one or more Properties that have not theretofore been released from the Liens of real property the Loan Documents and (ii) the conditions set forth in Section 2.3(a) (subject to Section 2.3(b) in the case of a Ground Leased Parcel) shall not have been satisfied.
(d) Upon satisfaction of the requirements set forth in this Section 2.3, Lender will execute and deliver to Borrower such instruments, prepared by Borrower and reasonably approved by Lender, as shall be a condition necessary to release under this clause (5) so long as the Borrower is pursuing separate tax parcels applicable Property from the Liens of real propertythe Loan Documents, and continues to pay release the applicable Borrower from all further liabilities and obligations under the Loan Documents (other than those expressly provided to survive repayment and unless such applicable Borrower owns one or cause to be paid all taxes, charges and assessments related to more other Properties that have not theretofore been released from the such Properties; and
(iv) The Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction Liens of the Requisite LendersLoan Documents)) prior to . Thereafter the requested date of release. Delivery by the Borrower to the Agent of any such request “Borrower” hereunder shall constitute a representation by exclude the Borrower that owned the foregoing conditions released Property (both as unless the applicable Borrower owns one or more other Properties that have not theretofore been released from the Liens of the date of such request and as of Loan Documents). Any rents or other income from the date of such release) are true and correct with respect to such released Property Release. Without limiting that is thereafter inadvertently paid or deposited into the foregoing, upon Blocked Account or the Agent’s request (acting at the written direction of the Requisite Lenders), the Borrower Cash Management Account shall deliver be promptly released to the Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding Clauses (i) through (iii) (together with supporting calculations attached hereto)applicable Borrower.
Appears in 1 contract
Property Releases. From time to time the Mortgage Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Documents Lien of the Mortgage thereon (a “Property Release”)and related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Senior Mezzanine Borrower may obtain the Liens created thereby to release of a portion of the extent applicable Senior Mezzanine Collateral related to such Individual Property and related Collateral(other than those expressly stated to survive) pursuant to Section 2.9 of the Senior Mezzanine Loan Agreement, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iii) If any Collateral Property The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction terms of the Requisite LendersMortgage Loan Agreement for which the portion of the Collateral relates, in their reasonable discretionand such prepayment shall be deemed a voluntary prepayment for all purposes hereunder, and (ii) that the applicable agreement has been amended or replaced (amount of the outstanding principal balance of the Senior Mezzanine Loan to be prepaid in accordance with this Agreement) the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Senior Mezzanine Collateral relates, and such that applicable Collateral Properties may prepayment shall be owned, operated and/or encumbered separately and independently from each otherdeemed a voluntary prepayment for all purposes hereunder;
(iiic) With respect Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the release of any Collateral Individual Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral PropertyRelease Date”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums (such notice being revocable or other land divisions; may be modified by Borrower on at least two (2) that immediately following such release Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the Remaining notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral Property complies in relates (together with all material respects with Applicable Law (i) accrued and has unpaid interest on the benefit of all utilitiesprincipal amount being prepaid, easements(ii) Breakage Costs, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed (iii) Compensating Interest, if applicable and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan Amount of the Individual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(e) Borrower shall have received such written request at least submit to Lender, not less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of release. Delivery by Lien (and related Loan Documents) for the Borrower portion of the Collateral related to the Agent Individual Property for execution by Lender. Such release shall be in a form satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of any the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such request release, together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Collateral subject to the Loan Documents not being released). Lender shall constitute a representation deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Borrower Release Date;
(f) After giving effect to such release, Lender shall have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 9.95% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the portion of the Collateral related to the Individual Property from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Mortgage Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Mortgage Borrower (if applicable); and
(i) through Borrower shall have delivered evidence satisfactory to Lender that (iiii) Senior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”).
Appears in 1 contract
Sources: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. From time (a) On or after the Permitted Prepayment Date, provided no Event of Default is then continuing and all amounts then due and owing to time Lender have been paid in full, Borrower shall have the Borrower may request that any Collateral Property be released right, at its option, on not less than 30 days’ prior written notice to Lender, to obtain the release of one or more of the Properties from the Security Liens of the Loan Documents (a “Property Release”), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Salebona-fide sale to an unaffiliated third party, subject to the satisfaction of provided that the following conditionsconditions shall have been satisfied:
(i) No Default Borrower shall prepay the Loan, in respect of any payment obligations owing accordance with Section 2.1, in an amount equal to the applicable Release Price, which prepayment shall be accompanied by the Borrower under this Agreement or other amounts specified in respect of Section 2.1.
(ii) Unless the Loan is repaid in full, Debt Yield for the Test Period then most recently ended, recalculated to include only income and expense attributable to the Properties remaining after the contemplated release, shall be no less than the Debt Yield Threshold.
(iii) If any material non-monetary obligations portion of the Borrower under this Agreement and no Event of Default Loan has occurred and is continuing (other than been Securitized in a Default or Event of Default solely with respect REMIC, after giving effect to the Collateral release of the Property subject or Properties, the Lender 80% Determination shall have been satisfied or, if the same is not so satisfied, then Borrower shall have prepaid the Loan in an amount equal to such the lesser of (x) the fair market value of the Property Releaseor Properties so released (as determined by Lender in its sole discretion using any commercially reasonable method permitted to a REMIC and excluding the value attributable to any property that is not an interest in real property within the meaning of Section 860(G)(a)(3)(A) or of the Code) and (y) the amount necessary to obtain a Lender 80% Determination.
(iv) If any portion of the Loan has been Securitized in a REMIC, Borrower shall deliver to Lender an opinion of counsel in form and substance which would occur be acceptable to a prudent lender of securitized commercial mortgage loans acting reasonably, stating, among other things, that any REMIC formed pursuant to a Securitization will not fail to maintain its status as a REMIC as a result of such Property Release;release and will not be subject to tax on any “prohibited transactions” or “prohibited contributions” as a result of such release.
(iiv) If Borrower shall reimburse Lender for any Collateral Property to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then actual out-of-pocket costs and expenses incurred by Lender in connection with this Section 2.2 (including the Agent shall have received evidence in form reasonable fees and substance satisfactory to expenses of legal counsel and the Agent (acting at the direction reasonable out-of-pocket expenses of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (in accordance with this Agreement) such that applicable Collateral Properties may be owned, operated and/or encumbered separately and independently from each other;Servicer).
(iiib) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction Upon satisfaction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used requirements set forth in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created Lender will execute and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date of release. Delivery by the Borrower to the Agent of any such request shall constitute a representation by the Borrower that the foregoing conditions (both as of the date of such request and as of the date of such release) are true and correct with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction of the Requisite Lenders), the Borrower shall deliver to the Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding Clauses (i) through (iii) (together with supporting calculations attached hereto).Borrower such instruments, prepared by Borrower and reasonably 45 [AM_ACTIVE 400655008_12]
Appears in 1 contract
Sources: Loan Agreement (Hartman Short Term Income Properties XX, Inc.)
Property Releases. From time to time the Mortgage Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Documents Lien of the Mortgage thereon (a “Property Release”)and related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Senior Mezzanine Borrower may obtain the Liens created thereby to release of a portion of the extent applicable Senior Mezzanine Collateral related to such Individual Property and related Collateral(other than those expressly stated to survive) pursuant to Section 2.9 of the Senior Mezzanine Loan Agreement, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iii) If any Collateral Property The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction terms of the Requisite LendersMortgage Loan Agreement for which the portion of the Collateral relates, in their reasonable discretionand such prepayment shall be deemed a voluntary prepayment for all purposes hereunder, and (ii) that the applicable agreement has been amended or replaced (amount of the outstanding principal balance of the Senior Mezzanine Loan to be prepaid in accordance with this Agreement) the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Senior Mezzanine Collateral relates, and such that applicable Collateral Properties may prepayment shall be owned, operated and/or encumbered separately and independently from each otherdeemed a voluntary prepayment for all purposes hereunder;
(iiic) With respect Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the release of any Collateral Individual Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral PropertyRelease Date”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums (such notice being revocable or other land divisions; may be modified by Borrower on at least two (2) that immediately following such release Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the Remaining notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral Property complies in relates (together with all material respects with Applicable Law (i) accrued and has unpaid interest on the benefit of all utilitiesprincipal amount being prepaid, easements(ii) Breakage Costs, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed (iii) Compensating Interest, if applicable and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan Amount of the Individual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(e) Borrower shall have received such written request at least submit to Lender, not less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of release. Delivery by Lien (and related Loan Documents) for the Borrower portion of the Collateral related to the Agent Individual Property for execution by Lender. Such release shall be in a form satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of any the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such request release, together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Collateral subject to the Loan Documents not being released). Lender shall constitute a representation deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Borrower Release Date;
(f) After giving effect to such release, Lender shall have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 10.15% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the portion of the Collateral related to the Individual Property from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Mortgage Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Mortgage Borrower (if applicable); and
(i) through Borrower shall have delivered evidence satisfactory to Lender that (iiii) Senior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”).
Appears in 1 contract
Sources: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. From time to time the Mortgage Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Documents Lien of the Mortgage thereon (a “and related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Borrower shall have the right to obtain the release of the portion of the Collateral related to such Individual Property Release”being released (other than those expressly stated to survive), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iib) If any Collateral Property The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such Property Release is subject prepayment shall be deemed a voluntary prepayment for all purposes hereunder;
(c) Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to an agreement which restricts such obtain a release of the Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory related to the Agent Individual Property (acting the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the direction notice of intended release);
(d) Borrower shall prepay the portion of the Requisite LendersNote equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on the principal amount being prepaid, in their reasonable discretion(ii) that Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable agreement has been amended or replaced Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with this Agreementthe terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) such that applicable Collateral Properties may hereof) shall, notwithstanding anything to the contrary contained herein, be ownedapplied (A) first, operated and/or encumbered separately to reduce the Allocated Loan Amount of the Individual Property being released to zero and independently from each other(B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(iiie) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused submit to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to releaseLender, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of release. Delivery by Lien (and related Loan Documents) for the Borrower portion of the Collateral related to the Agent Individual Property for execution by Lender. Such release shall be in a form satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of any the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such request release, together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Collateral subject to the Loan Documents not being released). Lender shall constitute a representation deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Borrower Release Date;
(f) After giving effect to such release, Lender shall have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 9.56% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the portion of the Collateral related to the Individual Property from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Mortgage Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Mortgage Borrower (if applicable); and
(i) through Borrower shall have delivered evidence satisfactory to Lender that (iiii) Junior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”).
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. From time to time the Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Lien of the Mortgage thereon (and related Loan Documents) and the release of Borrower’s obligations under the Loan Documents with respect to such Individual Property (a “Property Release”other than those expressly stated to survive), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iib) If any Collateral Property The amount of the outstanding principal balance of the Loan to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (prepaid in accordance with this Agreement) the terms hereof shall equal or exceed the Release Price for the applicable Individual Property, and such that applicable Collateral Properties may prepayment shall be owned, operated and/or encumbered separately and independently from each otherdeemed a voluntary prepayment for all purposes hereunder;
(iiic) With respect Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to the obtain a release of any Collateral the Individual Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral PropertyRelease Date”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums (such notice being revocable or other land divisions; may be modified by Borrower on at least two (2) that immediately following such release Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the Remaining Collateral notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property complies in being released (together with all material respects with Applicable Law (i) accrued and has unpaid interest on the benefit of all utilitiesprincipal amount being prepaid, easements(ii) Breakage Costs, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed (iii) Compensating Interest, if applicable and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan Amount of the Individual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(e) Borrower shall have received such written request at least submit to Lender, not less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of Lien (and related Loan Documents) for such Individual Property for execution by Lender. Such release shall be in a form appropriate in each State in which the Individual Property is located and that would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Delivery , together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the Borrower terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the Agent parties to the Loan Documents and Properties subject to the Loan Documents not being released). Lender shall deliver such executed release of any Lien for such request Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(f) After giving effect to such release, Lender shall constitute a representation by the Borrower have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 9.56% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the Individual Property from the lien of the related Mortgage Instrument and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Senior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Senior Mezzanine Borrower if applicable; and
(i) through Borrower shall have delivered evidence satisfactory to Lender that (iiii) Junior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, (a) on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”); and (b) if the Loan is included in a REMIC Trust and the LTV Ratio exceeds or would exceed one hundred twenty five percent (125%) immediately after the release of the applicable Individual Property (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any; provided that Lender shall not require a re-appraisal or a broker’s opinion of value of the Properties if another commercially reasonable method of valuation of the real property permitted to a REMIC Trust is available to Lender at such time including an internally generated valuation), no release will be permitted unless (i) the principal balance of the Loan is prepaid by an amount not less than the greater of (A) the Release Price for the applicable Individual Property or (B) the least of one (1) of the following amounts: (I) only if the released Individual Property is sold, the net proceeds of an arm’s length sale of the released Individual Property, to an unaffiliated Person, (II) the fair market value of the released Individual Property, at the time of the release, or (III) an amount such that the LTV Ratio immediately after the release of the applicable Individual Property is not greater than the LTV Ratio of the Properties immediately prior to such release, or (ii) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the release.
Appears in 1 contract
Property Releases. From time to time the Mortgage Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Documents Lien of the Mortgage thereon (a “and related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Borrower shall have the right to obtain the release of the portion of the Collateral related to such Individual Property Release”being released (other than those expressly stated to survive), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iib) If any Collateral Property The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such Property Release is subject prepayment shall be deemed a voluntary prepayment for all purposes hereunder;
(c) Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to an agreement which restricts such obtain a release of the Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory related to the Agent Individual Property (acting the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the direction notice of intended release);
(d) Borrower shall prepay the portion of the Requisite LendersNote equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on the principal amount being prepaid, in their reasonable discretion(ii) that Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable agreement has been amended or replaced Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with this Agreementthe terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) such that applicable Collateral Properties may hereof) shall, notwithstanding anything to the contrary contained herein, be ownedapplied (A) first, operated and/or encumbered separately to reduce the Allocated Loan Amount of the Individual Property being released to zero and independently from each other(B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(iiie) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused submit to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to releaseLender, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of release. Delivery by Lien (and related Loan Documents) for the Borrower portion of the Collateral related to the Agent Individual Property for execution by Lender. Such release shall be in a form satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of any the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such request release, together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Collateral subject to the Loan Documents not being released). Lender shall constitute a representation deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Borrower Release Date;
(f) After giving effect to such release, Lender shall have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 9.50% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the portion of the Collateral related to the Individual Property from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Mortgage Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Mortgage Borrower (if applicable); and
(i) through Borrower shall have delivered evidence satisfactory to Lender that (iiii) Junior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Junior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Junior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Junior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”).
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. From time to time after the Prepayment Lockout Expiration Date but prior to the Maturity Date, Borrower may request request, upon not less than thirty (30) days prior written notice to the Administrative Agent or such shorter period as may be acceptable to Administrative Agent, that any Collateral Non-Key Property (but not any Key Property) be released from the Collateral Pool and from the Liens created by the Security Documents Instrument and other Loan Documents, which release (a “Property Release”), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with ) shall be effected by a Specified Property Sale, subject to the satisfaction written release executed by Administrative Agent when all of the following conditionsconditions are satisfied as of the date of such Property Release:
(ia) No Default in respect of any payment obligations owing by or Potential Default exists under the Borrower under this Agreement Loan Documents, or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing (other than a Default or Event of Default solely with respect will exist immediately after giving effect to the Collateral Property subject to such Property Release) or would occur as a result of such Property Release;
(iib) Such Property Release shall be in connection with the refinancing of such Non-Key Property, or the sale of such Non-Key Property, to a Person that is not an Affiliate of any Borrower or Guarantor, or such Non-Key Property shall be contributed to a joint venture or other entity Controlled by Borrower or Guarantor for the purpose of the redevelopment of such Non-Key Property;
(c) Administrative Agent shall have received, for the account of the applicable Lenders, the Release Price for the Property to be released, which Release Price shall be applied as a reduction of the outstanding principal balance of the Term Loan;
(d) Administrative Agent shall have received any and all sums then due and owing under the Loan Documents in connection with such Property Release, including the applicable Prepayment Premium due on account of such Property Release, and all closing and recording costs, the costs of preparing and delivering such Property Release and the cost of any title insurance endorsements required by Administrative Agent, including, without limitation, an endorsement pursuant to applicable title insurance rules and regulations;
(e) If any Collateral the Non-Key Property to be released pursuant is only a portion of larger parcel or tract of land, then: (i) the Non-Key Property to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then be released and the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction portion of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (in accordance with this Agreement) such that applicable Collateral Properties may be owned, operated and/or encumbered separately and independently from each other;
(iii) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the applicable Security Documents immediately following such release (as used in this Section, the “Remaining Collateral Property”) are Instrument shall each separate be legal parcels, parcels lawfully created in compliance with all subdivision laws and describedordinances and, at Borrower’s sole cost, and Administrative Agent shall have received any title insurance endorsements or other evidence to that effect requested by Administrative Agent, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining form satisfactory to zoning, subdivisions, parcel maps, condominiums or other land divisionsAdministrative Agent; (2ii) that immediately following such release the Remaining Collateral legal descriptions of the portion of the Property complies being released and the portion of the Property remaining encumbered shall be acceptable to Administrative Agent in all material respects with Applicable Law its sole discretion and has (iii) the portion of the Property which shall remain encumbered by the applicable Security Instrument shall have the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary necessary, in Administrative Agent’s judgment, for the continued development, improvement and operation thereof; (3) provided, that Administrative Agent shall exercise such judgment in a reasonable manner so long as any such release shall not materially adversely affect result in a material adverse effect on the use remaining portion of the Property not so released;
(f) If the Non-Key Property to be released is only a portion of larger parcel or operation of, or access totract of land for real estate tax purposes (i.e., the Remaining Collateral Property; (4) if applicableNon-Key Property being released is only a portion of a larger tax parcel), the Borrower Administrative Agent shall have caused received evidence satisfactory to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and Administrative Agent that any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond tax or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Non-Key Property has been proportionately properly allocated between the Non-Key Property to be released and the portion of the Property which shall remain encumbered by the Security Instrument;
(g) No Property Release shall result in any of the remaining Property in the Collateral Pool after the Property Release not (i) having sufficient access to a public right-of-way for ingress and egress to such Propertiesremaining Property or (ii) being in non-compliance with any Requirements of Law as a result of such Property Release, provided that separate tax parcels including without limitation, any parking requirements applicable to the Property remaining in the Collateral Pool;
(h) Neither the acceptance of real property any payment of a Release Price nor the issuance of any Property Release by Administrative Agent shall affect Borrower’s obligation to repay all amounts owing under the Loan Documents or under the Lien of the Security Instrument on the remainder of the Property which is not released; provided, however, if a Property Release obtained in accordance with this Agreement results in one of the entities other than ▇▇▇▇ Parent comprising Borrower no longer having any interest in the Collateral Pool, Administrative Agent and Lenders shall take such actions as may reasonably be a condition required to release such entity from any liability accruing under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, Loan Documents from and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date of release. Delivery by the Borrower to the Agent of any such request shall constitute a representation by the Borrower that the foregoing conditions (both as of the date of such request and as of after the date of such release;
(i) are true To the extent a metes and correct bounds description of the Non-Key Property is not attached hereto as Exhibits A-1 through A-28, Borrower shall have provided Administrative Agent with respect a metes and bounds description and survey of such Non-Key Property in order to effectuate such release;
(j) After giving effect to such Property Release. Without limiting , the foregoing, upon Collateral Pool shall comply with the Agent’s request Portfolio Diversification provisions of Section 2.8; and
(acting at the written direction k) No Property Release shall be of the Requisite Lenders)Columbia Corporate Center 10/20/30 Parking Deck, the Columbia Corporate Center 40 Parking Deck or the Columbia Corporate Center 50/60/70 Parking Deck except as follows:
(1) To the extent Borrower has effectuated a Property Release of Columbia ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ Corporate Center 20 and Columbia Corporate Center 30 in accordance with the terms and conditions of this Agreement, then the Columbia Corporate Center 10/20/30 Parking Deck shall deliver to be released at such time as the Agent last of the foregoing three properties is released.
(2) To the extent Borrower has effectuated a certificate from Property Release of Columbia Corporate Center 40, then the chief operating officer or chief financial officer certifying Columbia Corporate Center 40 Parking Deck shall be released in connection with such release.
(3) To the matters referred to extent Borrower has effectuated a Property Release of Columbia ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ Corporate Center 60 and Columbia Corporate Center 70 in accordance with the immediately preceding Clauses (i) through (iii) (together with supporting calculations attached hereto)terms and conditions of this Agreement, then the Columbia Corporate Center 50/60/70 Parking Deck shall be released at such time as the last of the foregoing three properties is released.
Appears in 1 contract
Sources: Loan Agreement (Howard Hughes Corp)
Property Releases. From time to time the Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Lien of the Mortgage thereon (and related Loan Documents) and the release of Borrower’s obligations under the Loan Documents with respect to such Individual Property (a “Property Release”other than those expressly stated to survive), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iib) If any Collateral Property The amount of the outstanding principal balance of the Loan to be released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (prepaid in accordance with this Agreement) the terms hereof shall equal or exceed the Release Price for the applicable Individual Property, and such that applicable Collateral Properties may prepayment shall be owned, operated and/or encumbered separately and independently from each otherdeemed a voluntary prepayment for all purposes hereunder;
(iiic) With respect Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to the obtain a release of any Collateral the Individual Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral PropertyRelease Date”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums (such notice being revocable or other land divisions; may be modified by Borrower on at least two (2) that immediately following such release Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the Remaining Collateral notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property complies in being released (together with all material respects with Applicable Law (i) accrued and has unpaid interest on the benefit of all utilitiesprincipal amount being prepaid, easements(ii) Breakage Costs, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed (iii) Compensating Interest, if applicable and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan Amount of the Individual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(e) Borrower shall have received such written request at least submit to Lender, not less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of Lien (and related Loan Documents) for such Individual Property for execution by Lender. Such release shall be in a form appropriate in each State in which the Individual Property is located and that would be satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such release. Delivery , together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender and recordation thereof, effect such releases in accordance with the Borrower terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the Agent parties to the Loan Documents and Properties subject to the Loan Documents not being released). Lender shall deliver such executed release of any Lien for such request Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Release Date;
(f) After giving effect to such release, Lender shall constitute a representation by the Borrower have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 10.89% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the Individual Property from the lien of the related Mortgage Instrument and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Senior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Senior Mezzanine Borrower if applicable; and
(i) through [Intentionally Omitted]. Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, (iiia) (on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”); and (b) if the Loan is included in a REMIC Trust and the LTV Ratio exceeds or would exceed one hundred twenty five percent (125%) immediately after the release of the applicable Individual Property (such value to be determined, in Lender’s sole discretion, by any commercially reasonable method permitted to a REMIC Trust, based solely on the value of the real property excluding personal property and going concern value, if any; provided that Lender shall not require a re-appraisal or a broker’s opinion of value of the Properties if another commercially reasonable method of valuation of the real property permitted to a REMIC Trust is available to Lender at such time including an internally generated valuation), no release will be permitted unless (i) the principal balance of the Loan is prepaid by an amount not less than the greater of (A) the Release Price for the applicable Individual Property or (B) the least of one (1) of the following amounts: (I) only if the released Individual Property is sold, the net proceeds of an arm’s length sale of the released Individual Property, to an unaffiliated Person, (II) the fair market value of the released Individual Property, at the time of the release, or (III) an amount such that the LTV Ratio immediately after the release of the applicable Individual Property is not greater than the LTV Ratio of the Properties immediately prior to such release, or (ii) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the release.
Appears in 1 contract
Property Releases. From time to time the Mortgage Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Documents Lien of the Mortgage thereon (a “Property Release”)and related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Senior Mezzanine Borrower may obtain the Liens created thereby to release of a portion of the extent applicable Senior Mezzanine Collateral related to such Individual Property and related Collateral(other than those expressly stated to survive) pursuant to Section 2.9 of the Senior Mezzanine Loan Agreement, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iii) If any Collateral Property The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction terms of the Requisite LendersMortgage Loan Agreement for which the portion of the Collateral relates, in their reasonable discretionand such prepayment shall be deemed a voluntary prepayment for all purposes hereunder, and (ii) that the applicable agreement has been amended or replaced (amount of the outstanding principal balance of the Senior Mezzanine Loan to be prepaid in accordance with this Agreement) the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Senior Mezzanine Collateral relates, and such that applicable Collateral Properties may prepayment shall be owned, operated and/or encumbered separately and independently from each otherdeemed a voluntary prepayment for all purposes hereunder;
(iiic) With respect Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the release of any Collateral Individual Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral PropertyRelease Date”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums (such notice being revocable or other land divisions; may be modified by Borrower on at least two (2) that immediately following such release Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the Remaining notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral Property complies in relates (together with all material respects with Applicable Law (i) accrued and has unpaid interest on the benefit of all utilitiesprincipal amount being prepaid, easements(ii) Breakage Costs, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed (iii) Compensating Interest, if applicable and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan Amount of the Individual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(e) Borrower shall have received such written request at least submit to Lender, not less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of release. Delivery by Lien (and related Loan Documents) for the Borrower portion of the Collateral related to the Agent Individual Property for execution by Lender. Such release shall be in a form satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of any the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such request release, together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Collateral subject to the Loan Documents not being released). Lender shall constitute a representation deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Borrower Release Date;
(f) After giving effect to such release, Lender shall have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 9.56% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the portion of the Collateral related to the Individual Property from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Mortgage Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Mortgage Borrower (if applicable); and
(i) through Borrower shall have delivered evidence satisfactory to Lender that (iiii) Senior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”).
Appears in 1 contract
Sources: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. From time (a) So long as no Event of Default is then continuing (other than an Event of Default that would be eliminated after giving effect to time the release of the Property proposed to be released pursuant to Section 7.1(n)), any Co-Borrower may request that any Collateral obtain the release of the Property be released owned by such Co-Borrower from the Security Liens of the Loan Documents and the release of such Co-Borrower from any and all of its obligations under this Agreement and the other Loan Documents and such Property may be Transferred (whether directly or indirectly by transferring the ownership interests in the Co-Borrower that owns such Property) to an unaffiliated third party in a “Property Release”bona fide arms-length transaction (except that, if the release is being effectuated pursuant to the provisions of Section 7.1(n), and the Liens created thereby to the extent applicable to Borrower may Transfer such Property and related Collateral, in connection with a Specified Property Sale, subject to the an Affiliate of Borrower) upon satisfaction of the following conditions:
(i) No Default in respect Borrower shall deliver to Administrative Agent and Collateral Agent notice (a “Release Notice”) of any payment obligations owing by the Borrower under this Agreement its intent to release one or in respect of any material non-monetary obligations more of the Properties, which notice must be given at least 10 Business Days and not more than 60 days prior to the Business Day upon which the release is to be made, shall specify the Property or Properties that Borrower under intends to release and shall be executed by each Borrower. Borrower shall promptly reimburse Lender, Administrative Agent and Collateral Agent for any actual out-of-pocket costs and expenses (including the reasonable fees and expenses of legal counsel) incurred by any of them in connection with a release pursuant to this Agreement Section 2.2.
(ii) At the time of such release, and as a condition thereto: (1) Borrower shall prepay a portion of the Loan, in accordance with Section 2.1, in an amount equal to the applicable Release Price and, in the event that such release occurs at any time during the Spread Maintenance Period, simultaneously pay to Lender any applicable Spread Maintenance Amount together with the other amounts specified in Section 2.1, to the extent applicable; provided, however, that no Event of Default has occurred and is continuing (other than a Default or Event of Default solely Spread Maintenance Amount shall be payable with respect to the Collateral Property subject first $50,000,000 of prepayments in the aggregate that are made in connection with releases pursuant to this Section 2.2, Section 2.4, Section 2.5 and Section 7.1(n), (2) after giving effect to such Property Releaserelease, Borrower shall not be in violation of Section 6.20 and (3) or would occur DSCR calculated for the Test Period ending as a result of such Property Release;
(ii) If any Collateral Property the last day of the Fiscal Quarter then most recently ended, recalculated to include only income and expense attributable to the Properties remaining after the release and to exclude the interest expense and principal payments on the aggregate amount to be released prepaid, shall be equal to or greater than DSCR calculated for the Test Period ending as of the last day of the Fiscal Quarter then most recently ended but without such recalculation; provided, however, that if the Release Price paid by Borrower pursuant to such the foregoing clause (1) shall be equal to or greater than 105% of the Allocated Loan Amount for the Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Propertyreleased, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (in accordance with this Agreement) such that applicable Collateral Properties may be owned, operated and/or encumbered separately and independently from each other;
(iii) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used DSCR test described in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; clause (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to the release under this clause of such Property.
(5iii) so long as In connection with a release of the Stratosphere, either (x) the Stratosphere Excess Land shall have theretofore been released or (y) Borrower is pursuing separate tax parcels of real property, and continues to pay or shall cause the Stratosphere Excess Land to be paid all taxesreleased contemporaneously therewith in accordance with the requirements set forth herein.
(b) Subject to Section 1.9(b), charges immediately upon satisfaction of the requirements in Sections 2.1, 2.2, 2.4 or 7.1(n), as applicable, Collateral Agent shall, at Borrower’s sole cost and assessments related expense, execute and deliver to Borrower such instruments, prepared by Borrower and approved by Administrative Agent at the direction of Required Lenders (Lender agreeing, for the benefit of Borrower, that such approval, in the absence of an Event of Default (other than an Event of Default that would be eliminated after giving effect to the such Properties; and
(iv) The Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction release of the Requisite LendersProperty proposed to be released) shall not be unreasonably withheld, conditioned or delayed)) prior , as shall be necessary to release the requested date of release. Delivery by applicable Co-Borrower, the Borrower to applicable Property and the Agent applicable portion of any such request shall constitute a representation by other Collateral securing the Borrower that the foregoing conditions (both as of the date of such request and as of the date of such release) are true and correct Loan with respect to such Property Release. Without limiting and such Co-Borrower (excluding any amounts retained in any Collateral Accounts maintained with respect to such Property and such Co-Borrower) from the foregoing, upon the Agent’s request (acting at the written direction Liens of the Requisite Lenders)Loan Documents. Any Property and any Co-Borrower released pursuant to this Section 2.2, Section 2.4 or Section 7.1(n) shall, effective upon such release, no longer be deemed a “Property” or a “Co-Borrower”, respectively, for any purpose of this Agreement or the other Loan Documents. At Borrower’s request, Collateral Agent will promptly assign the portion of the Indebtedness secured by the portion of the Collateral to be released, as well as the applicable Mortgage encumbering such portion of the Collateral, to a third party specified by Borrower without representation or warranty (except that, if requested by Borrower, Lender shall deliver to join in such assignment for the Agent a certificate from the chief operating officer or chief financial officer certifying the matters referred to in the immediately preceding Clauses express purpose of representing that (i) through Lender owns such portion of the Indebtedness; (ii) Lender has not encumbered such portion of the Indebtedness, except for Liens to be discharged concurrently with such assignment; and (iii) the full amount of the then-outstanding Indebtedness) in accordance with Section 1.9.
(together c) Upon the release of a Property pursuant to this Section 2.2, Section 2.4, Section 2.5 and Section 7.1(n), Borrower shall have the right to apply any Reserve Excess to the prepayment of the Loan, subject to and in accordance with supporting calculations attached heretoSection 2.1.
(d) Administrative Agent shall remit to each Lender hereunder such Lender’s pro rata share of any and all amounts received by Administrative Agent pursuant to this Section 2.2, on the day of Administrative Agent’s receipt thereof (or, if received later than 11:00 a.m., New York City time, on the next succeeding Business Day). Any funds received by Administrative Agent after 11:00 a.m., New York City time shall be deemed to have been received on the next succeeding Business Day.
Appears in 1 contract
Sources: Loan Agreement (American Casino & Entertainment Properties LLC)
Property Releases. From time to time the Mortgage Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Documents Lien of the Mortgage thereon (a “and related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Borrower shall have the right to obtain the release of the portion of the Collateral related to such Individual Property Release”being released (other than those expressly stated to survive), and the Liens created thereby to the extent applicable to such Property and related Collateral, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iib) If any Collateral Property The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates, and such Property Release is subject prepayment shall be deemed a voluntary prepayment for all purposes hereunder;
(c) Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to an agreement which restricts such obtain a release of the Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory related to the Agent Individual Property (acting the “Release Date”) (such notice being revocable or may be modified by Borrower on at least two (2) Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the direction notice of intended release);
(d) Borrower shall prepay the portion of the Requisite LendersNote equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral relates (together with all (i) accrued and unpaid interest on the principal amount being prepaid, in their reasonable discretion(ii) that Breakage Costs, if applicable, (iii) Compensating Interest, if applicable and (iv) the applicable agreement has been amended or replaced Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with this Agreementthe terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) such that applicable Collateral Properties may hereof) shall, notwithstanding anything to the contrary contained herein, be ownedapplied (A) first, operated and/or encumbered separately to reduce the Allocated Loan Amount of the Individual Property being released to zero and independently from each other(B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(iiie) With respect to the release of any Collateral Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused submit to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to releaseLender, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of release. Delivery by Lien (and related Loan Documents) for the Borrower portion of the Collateral related to the Agent Individual Property for execution by Lender. Such release shall be in a form satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of any the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such request release, together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Collateral subject to the Loan Documents not being released). Lender shall constitute a representation deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Borrower Release Date;
(f) After giving effect to such release, Lender shall have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 10.89% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the portion of the Collateral related to the Individual Property from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Mortgage Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Mortgage Borrower (if applicable); and
(i) through (iii[Intentionally Omitted]. Notwithstanding anything in Section 2.6(a) (or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”).
Appears in 1 contract
Sources: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Property Releases. From time (a) So long as no Event of Default is then continuing (other than an Event of Default that would be eliminated after giving effect to time the release of the Property proposed to be released pursuant to Section 7.1(l)), any Co-Borrower may request that any Collateral obtain the release of the Property be released owned by such Co-Borrower from the Security Liens of the Loan Documents and the release of such Co-Borrower from any and all of its obligations under this Agreement and the other Loan Documents and such Property may be Transferred (whether directly or indirectly by transferring the ownership interests in the Co-Borrower that owns such Property) to an unaffiliated third party in a “Property Release”bona fide arms-length transaction (except that, if the release is being effectuated pursuant to the provisions of Section 7.1(l), and the Liens created thereby to the extent applicable to Borrower may Transfer such Property and related Collateral, in connection with a Specified Property Sale, subject to the an Affiliate of Borrower) upon satisfaction of the following conditions:
(i) No Default Borrower shall deliver to Lender notice (a “Release Notice”) of its intent to release one or more of the Properties, which notice must be given at least 10 Business Days and not more than 60 days prior to the Business Day upon which the release is to be made and shall specify the Property or Properties that Borrower intends to release. Borrower shall promptly reimburse Lender for any actual out-of-pocket costs and expenses (including the reasonable fees and expenses of legal counsel and the Servicer) incurred by Lender in connection with a release pursuant to this Section 2.2.
(ii) At the time of such release, and as a condition thereto: (1) Borrower shall prepay a portion of the Loan, in accordance with Section 2.1, in an amount equal to the applicable Release Price and, in the event that such release occurs at any time during the Spread Maintenance Period, simultaneously pay to Lender any applicable Spread Maintenance Amount together with the other amounts specified in Section 2.1, to the extent applicable, and (2) DSCR for the Fiscal Quarter then most recently ended, recalculated to include only income and expense attributable to the Properties remaining after the release and to exclude the interest expense and principal payments on the aggregate amount to be prepaid, shall be equal to or greater than the applicable DSCR Threshold; provided, however, that, except with respect to a release of a Property pursuant to Section 7.1(l), the DSCR Threshold need not be satisfied if at the time of such sale Borrower (I) prepays the Loan in an amount set forth in clause (1) above, (II) deposits 100% of any remaining Excess Transfer Proceeds, after payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the amounts required under clause (1) above and the corresponding sections of the Mezzanine Loan Agreements, into the Cash Reserve Account as additional collateral for the Loan (for the avoidance of doubt, any release of a Property pursuant to Section 7.1(l) shall be subject to the satisfaction of the DSCR Threshold, and Borrower under shall not be released from such requirement by depositing 100% of the Excess Transfer Proceeds as set forth in clause this Agreement (II)), and no Event of Default has occurred and (III) if a deposit into the Cash Reserve Account is continuing made pursuant to clause (other than a Default or Event of Default solely II) above during the Spread Maintenance Period, contemporaneously deposits into such account the applicable Spread Maintenance Amount payable with respect to the Collateral Property subject Loan and each Mezzanine Loan, as if the Loan and each Mezzanine Loan had been prepaid in such amount on a pro rata basis pursuant to clause (z) of the following sentence. Following such Property Releasedeposit, Borrower shall, in its sole discretion, have the option to either (y) maintain the Excess Transfer Proceeds in the Cash Reserve Account as additional collateral for the Loan or would occur as a result (z) cause all or any portion of such Property Release;
(ii) If any Collateral Property the Excess Transfer Proceeds to be released applied toward prepayment of the Loan and the Mezzanine Loans, pro rata in proportion to their respective initial principal amounts, together with the applicable Spread Maintenance Amount, if any, deposited contemporaneously with such Excess Transfer Proceeds pursuant to such Property Release is subject to an agreement clause (III) above, which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent prepayment shall have received evidence in form and substance satisfactory to the Agent (acting at the direction of the Requisite Lenders, in their reasonable discretion) that the applicable agreement has been amended or replaced (otherwise be made in accordance with this AgreementSection 2.1 hereof and the corresponding sections of the Mezzanine Loan Documents, and the related Spread Maintenance Amount (if any) previously deposited into the Cash Reserve Account shall be paid to Lender and Mezzanine Lender in accordance with the Loan Documents and the Mezzanine Loan Documents, as if such that prepayment had been made at the time of the applicable Collateral Properties may be owned, operated and/or encumbered separately and independently from each other;release.
(iii) With Lender shall have received a payoff letter and written confirmation from each Mezzanine Lender that satisfactory escrow arrangements in connection with the release of such Property have been established.
(iv) In the case of a release of the Stratosphere Excess Land, if the Release Price shall exceed 120% of the Allocated Loan Amount with respect thereto (the total amount of any such excess, the “SEL Excess Transfer Proceeds”), Borrower shall deposit 100% of such SEL Excess Transfer Proceeds into the Cash Reserve Account as additional collateral for the Loan together with the amount of any Spread Maintenance Premium that would be payable thereon and with respect to the Mezzanine Loan if such amount were a prepayment of the Loan pursuant to Section 2.1 hereof and pursuant to Section 2.1 of the Mezzanine Loan Agreements, if any. Following such deposit, Borrower shall, in its sole discretion, have the option to either (y) maintain the SEL Excess Transfer Proceeds, together with the Spread Maintenance Premium payable thereon, if any, in the Cash Reserve Account as additional collateral for the Loan or (z) cause all or any portion of the SEL Excess Transfer Proceeds to be applied toward prepayment of the Loan and each Mezzanine Loan, pro rata in proportion to their respective initial principal amounts, which prepayments shall be made in accordance with Section 2.1 hereof and the corresponding sections of the Mezzanine Loan Documents, and the related Spread Maintenance Amount (if any) previously deposited into the Cash Reserve Account shall be paid to Lender and Mezzanine Lender in accordance with the Loan Documents and the Mezzanine Loan Documents, as if such prepayment had been made at the time of the applicable release; and
(v) In connection with a release of the Stratosphere, either (x) the Stratosphere Excess Land shall have theretofore been released or (y) Borrower shall cause the Stratosphere Excess Land to be released contemporaneously therewith in accordance with the requirements set forth herein.
(b) Immediately upon satisfaction of the requirements in Sections 2.1, 2.2, 2.4 or 7.1(l), Lender shall execute and deliver to Borrower such instruments, prepared by Borrower and approved by Lender (which approval, in the absence of an Event of Default (other than an Event of Default that would be eliminated after giving effect to the release of any Collateral the Property that is dependent uponproposed to be released) shall not be unreasonably withheld, assessed with conditioned or otherwise reliant on delayed), as shall be necessary to release the applicable Co-Borrower, the applicable Property and the applicable portion of any other Collateral Property not then subject to release, to securing the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral Property”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums or other land divisions; (2) that immediately following such release the Remaining Collateral Property complies in all material respects with Applicable Law and has the benefit of all utilities, easements, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent shall have received such written request at least ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date of release. Delivery by the Borrower to the Agent of any such request shall constitute a representation by the Borrower that the foregoing conditions (both as of the date of such request and as of the date of such release) are true and correct Loan with respect to such Property Release. Without limiting and such Co-Borrower (excluding any amounts retained in any Collateral Accounts maintained with respect to such Property and such Co-Borrower) from the foregoing, upon the Agent’s request (acting at the written direction Liens of the Requisite Lenders)Loan Documents. Any Property and any Co-Borrower released pursuant to this Section 2.2, Section 2.4 or Section 7.1(l) shall, effective upon such release, no longer be deemed a “Property” or a “Co-Borrower”, respectively, for any purpose of this Agreement or the other Loan Documents. At Borrower’s request, Lender will promptly assign the portion of the Indebtedness secured by the portion of the Collateral to be released, as well as the applicable Mortgage encumbering such portion of the Collateral, to a third party specified by Borrower shall deliver to the Agent a certificate from the chief operating officer without representation or chief financial officer certifying the matters referred to in the immediately preceding Clauses warranty (except that (i) through Lender owns such portion of the Indebtedness; (ii) Lender has not encumbered such portion of the Indebtedness, except for Liens to be discharged concurrently with such assignment; and (iii) the full amount of the then-outstanding Indebtedness) in accordance with Section 1.8.
(together c) Upon the release of a Property pursuant to this Section 2.2, Section 2.4 or Section 7.1(l), Borrower shall have the right to apply the Reserve Excess to the prepayment of the Loan and each Mezzanine Loan, pro rata in proportion to their respective initial principal amounts, subject to and in accordance with supporting calculations attached hereto)Section 2.1.
Appears in 1 contract
Sources: Loan Agreement (American Casino & Entertainment Properties LLC)
Property Releases. From time to time the Mortgage Borrower may request that any Collateral obtain the release of an Individual Property be released from the Security Documents Lien of the Mortgage thereon (a “Property Release”)and related Mortgage Loan Documents) pursuant to Section 2.9 of the Mortgage Loan Agreement, and Senior Mezzanine Borrower may obtain the Liens created thereby to release of a portion of the extent applicable Senior Mezzanine Collateral related to such Individual Property and related Collateral(other than those expressly stated to survive) pursuant to Section 2.9 of the Senior Mezzanine Loan Agreement, in connection with a Specified Property Sale, subject to upon the satisfaction of each of the following conditions:
(ia) No Default in respect of any payment obligations owing by the Borrower under this Agreement or in respect of any material non-monetary obligations of the Borrower under this Agreement and no Event of Default has occurred and is continuing shall then exist (other than a Default or non-monetary Event of Default solely with respect that is specific to the Collateral Individual Property subject being released pursuant to such Property Release) or this Section 2.9 and which non-monetary Event of Default would occur be cured as a result of such Property Releasethe release of the applicable Individual Property);
(iii) If any Collateral Property The amount of the outstanding principal balance of the Loan to be prepaid in accordance with the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to such Property Release is subject to an agreement which restricts such Collateral Property from being owned, operated or encumbered independently from another Collateral Property, then the Agent shall have received evidence in form and substance satisfactory to the Agent (acting at the direction terms of the Requisite LendersMortgage Loan Agreement for which the portion of the Collateral relates, in their reasonable discretionand such prepayment shall be deemed a voluntary prepayment for all purposes hereunder, and (ii) that the applicable agreement has been amended or replaced (amount of the outstanding principal balance of the Senior Mezzanine Loan to be prepaid in accordance with this Agreement) the terms hereof shall equal or exceed the Release Price for the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Senior Mezzanine Collateral relates, and such that applicable Collateral Properties may prepayment shall be owned, operated and/or encumbered separately and independently from each otherdeemed a voluntary prepayment for all purposes hereunder;
(iiic) With respect Borrower shall provide Lender with at least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Collateral related to the release of any Collateral Individual Property that is dependent upon, assessed with or otherwise reliant on any other Collateral Property not then subject to release, to the extent required by the Agent (acting at the written direction of the Requisite Lenders), the Agent shall have received evidence reasonably satisfactory to the Agent (acting at the written direction of the Requisite Lenders) that: (1) the Collateral Property subject to release and the Collateral Property which shall remain encumbered by the Security Documents immediately following such release (as used in this Section, the “Remaining Collateral PropertyRelease Date”) are each separate legal parcels, lawfully created and described, in compliance in all material respects with Applicable Laws, including, without limitation, applicable ordinances pertaining to zoning, subdivisions, parcel maps, condominiums (such notice being revocable or other land divisions; may be modified by Borrower on at least two (2) that immediately following such release Business Days prior written notice to Lender provided Borrower pays all of Lender’s reasonable costs and expenses incurred in connection with the Remaining notice of intended release);
(d) Borrower shall prepay the portion of the Note equal to the Release Price of the Individual Property being released pursuant to the terms of the Mortgage Loan Agreement for which the portion of the Collateral Property complies in relates (together with all material respects with Applicable Law (i) accrued and has unpaid interest on the benefit of all utilitiesprincipal amount being prepaid, easements(ii) Breakage Costs, public and/or private streets, covenants, conditions and restrictions as may be reasonably necessary for the continued operation thereof; (3) such release shall not materially adversely affect the use or operation of, or access to, the Remaining Collateral Property; (4) if applicable, the Borrower shall have caused to be executed (iii) Compensating Interest, if applicable and recorded in the applicable official records of the jurisdiction(s) in which the Collateral Property subject to release, the Remaining Collateral Property and any other applicable related property owned by the Borrower or its Affiliates are located, a declaration of covenants, conditions and restrictions and/or such other instruments and agreements related thereto as are necessary or desirable to satisfy the foregoing requirements, each in form and substance reasonably acceptable to the Agent (acting at the written direction of the Requisite Lenders); (5) any tax, bond or assessment which constitutes a Lien against both the Collateral Property subject to release and the Remaining Collateral Property has been proportionately allocated between such Properties, provided that separate tax parcels of real property shall not be a condition to release under this clause (5) so long as the Borrower is pursuing separate tax parcels of real property, and continues to pay or cause to be paid all taxes, charges and assessments related to the such Properties; and
(iv) The Agent the applicable Spread Maintenance Premium (if any) pursuant to Section 2.6(a) hereof) in accordance with the terms and conditions hereof. Such prepayment in the amount of the applicable Release Price (and any additional amounts prepaid pursuant to Section 2.9(f) hereof) shall, notwithstanding anything to the contrary contained herein, be applied (A) first, to reduce the Allocated Loan Amount of the Individual Property being released to zero and (B) second, pro-rata to reduce the Allocated Loan Amount of the remaining Individual Properties;
(e) Borrower shall have received such written request at least submit to Lender, not less than ten (10) Business Days (or such shorter period as may be acceptable to the Agent (acting at the written direction of the Requisite Lenders)) prior to the requested date Release Date, a release of release. Delivery by Lien (and related Loan Documents) for the Borrower portion of the Collateral related to the Agent Individual Property for execution by Lender. Such release shall be in a form satisfactory to a prudent institutional lender and shall contain standard provisions, if any, protecting the rights of any the releasing lender. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such request release, together with a certification certifying that such documentation (i) is in compliance with all applicable Legal Requirements, (ii) will, following execution by Lender, effect such releases in accordance with the terms of this Agreement, and (iii) will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and the Collateral subject to the Loan Documents not being released). Lender shall constitute a representation deliver such executed release of Lien for the portion of the Collateral related to such Individual Property to Borrower on or prior to the Release Date, or if requested by Borrower, to an escrow agent or title company designated by Borrower, to be held in escrow, at least three (3) Business Days prior to the Borrower Release Date;
(f) After giving effect to such release, Lender shall have determined that the foregoing conditions (both as Debt Yield for the Properties then remaining subject to the Liens of the date Mortgages shall be at least equal to the greater of such request (i) 9.50% and as (ii) the Debt Yield for all of the date then remaining Properties (including the Individual Property to be released) for the twelve (12) full calendar months immediately preceding the release of such releasethe Individual Property, provided that Borrower shall be permitted to make a prepayment of the Loan in accordance with the terms of Section 2.6 for the purpose of satisfying the Debt Yield requirement in this Section;
(g) are true Lender shall have received payment of all Lender’s reasonable, out-of-pocket costs and correct expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the portion of the Collateral related to the Individual Property from the lien of the related Pledge Agreement and the review and approval of the documents and information required to be delivered in connection therewith; provided, however, Borrower shall not be required to pay any consent, processing, administrative or similar fee in connection with any prepayment pursuant to this Section 2.9;
(h) Borrower shall have delivered evidence satisfactory to Lender that (i) Mortgage Borrower has complied with all of the terms and conditions set forth in the Mortgage Loan Agreement with respect to such Property Release. Without limiting the foregoing, upon the Agent’s request (acting at the written direction a release of the Requisite Lenders), the Borrower shall deliver security interest corresponding to the Agent a certificate from the chief operating officer release requested pursuant to this Section and (ii) Mortgage Lender has delivered (or chief financial officer certifying the matters referred is simultaneously delivering) such release to in the immediately preceding Clauses Mortgage Borrower (if applicable); and
(i) through Borrower shall have delivered evidence satisfactory to Lender that (iiii) Senior Mezzanine Borrower has complied with all of the terms and conditions set forth in the Senior Mezzanine Loan Agreement with respect to a release of the security interest (if applicable) corresponding to the release requested pursuant to this Section and (ii) Senior Mezzanine Lender has delivered (or is simultaneously delivering) such release to Senior Mezzanine Borrower (if applicable). Notwithstanding anything in Section 2.6(a) or this Section 2.9 to the contrary, on or prior to the expiration of the Spread Maintenance Date, no Spread Maintenance Premium shall be payable under Section 2.6(a) with respect to a release of the portion of the Collateral related to an Individual Property pursuant to this Section 2.9 in the event and to the extent that the Allocated Loan Amount of such Individual Property to be released together with supporting calculations attached heretothe Allocated Loan Amounts of all Individual Properties previously released and any other prepayments made pursuant to Sections 2.6(a) or 2.9 is less than twenty-five percent (25%) of the original principal balance of the Loan (the “Free Prepayment Amount”).
Appears in 1 contract
Sources: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)