Property Releases. (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(k)), Borrower may from time to time obtain the release of one or more of the Mortgaged Properties from the Liens of the Loan Documents and 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(k), Borrower may Transfer such Mortgaged Property to an Affiliate of Borrower) upon satisfaction of the following conditions: (i) Borrower shall deliver to Lender notice (a “Release Notice”) of its intent 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 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: (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(d), the applicable Release Price, plus (y) any additional amount required to be prepaid in accordance with Section 2.2(d) 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 amounts otherwise payable by Borrower under this 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 greater than the applicable DSCR Threshold; provided, however, that, except with respect to a release of a Mortgaged Property pursuant to Section 7.1(k), 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 of the amount required under clause (1)(y) 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 Mortgaged Property pursuant to Section 7.1(k) shall be subject to the satisfaction of the DSCR Threshold, and Borrower shall not be released from such requirement by depositing 100% of the Excess Transfer Proceeds as set forth in clause (II) above), and (III) during the continuance of the Spread Maintenance Period, pays to Lender and each Mezzanine Lender the applicable Spread Maintenance Amount on the amount so deposited into the Cash Reserve Account as if the Loan and the Mezzanine Loan had been prepaid in such amount on a 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 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 and the 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 Mezzanine Loan Documents (except that the Spread Maintenance Amount, which shall have been paid upon deposit of funds into the Cash Reserve Account, need not be paid a second time upon prepayment). (iii) Lender shall have received a payoff letter or written confirmation from each Mezzanine Lender that satisfactory escrow arrangements in connection with the release of such Mortgaged Property have been established. (b) Immediately upon satisfaction of the requirements in Sections 2.1, 2.2 or 7.1(k), as applicable, 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 the Mortgaged Property proposed to be released) shall not be unreasonably withheld, conditioned or delayed), as shall be necessary to release the applicable Mortgaged Property and the applicable portion of any other Collateral securing the Loan with respect to such Mortgaged Property (excluding any amounts retained in any Collateral Accounts with respect to such Mortgaged Property, except as otherwise expressly set forth herein) from the Liens of the Loan Documents (and/or, as applicable, the Qualified Letter(s) of Credit shall be correspondingly reduced). Any Mortgaged Property released pursuant to this Section 2.2 or Section 7.1(k) 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. 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 without representation or warranty (except that (i) 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) and otherwise in accordance with Section 1.8. (c) Immediately upon any release of Mortgaged Property pursuant to this Section 2.2 or Section 7.1(k), the Deferred Maintenance Amount and the Unfunded Obligations Amount required under this Agreement shall be reduced by an amount equal to the Unspent Allocated Deferred Maintenance Amount and the Unspent Allocated Unfunded Obligations Amount for such Mortgaged Property. (d) 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 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 Mortgage 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) after prepayments have been made that reduce the Principal Indebtedness to one-half of the Loan Amount, no release of a Mortgaged Property shall be permitted that would result in any increase in the Release Price Deficit; and (iii) 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 and each Mezzanine Loan in proportion to the Release Price Deficit and the “Release Price Deficits” under and as defined in the respective Mezzanine Loan Agreements, respectively, in each case until reduced to zero.
Appears in 1 contract
Property Releases. Subject to the terms and conditions set forth herein, ----------------- Borrower shall have the right, from time to time, on any Payment Date (as defined in the Note), or on any Business Day (as defined in the Note), to obtain a release (a "Property Release") of a Property from the lien of the related Security Instrument (i) provided that no default under this Agreement, the Note, the Security Instruments or any other Loan Document has occurred and is continuing and (ii) subject to compliance with the provisions set forth below in this Section 3, legal, record, economic and beneficial ownership of the Property for which a Property Release is being requested (the "Release Premises") is simultaneously with the granting of the Property Release transferred (a "Release Premises Transfer") to and shall be owned immediately after such Property Release by a person(s), party(ies) or entity(ies) other than Borrower, the Operating Tenant (as defined in the Security Instruments) or any affiliate of Borrower or of any Operating Tenant ("Release Premises Transferee"). In the event that the Borrower seeks to release a Property from the lien of the related Security Instrument, Lender shall release such Property from the lien of the related Security Instrument and the Loan Documents, but only upon receipt by Lender of the following:
(a) So long At least thirty (30) days but no more than ninety (90) days prior written notice of Borrower's request to obtain a release of the Release Premises in the form attached hereto as no Event Exhibit A;
(b) A certificate of Default Borrower certifying the requirements set forth in Paragraph 3(g) of this Loan Agreement shall be true after giving effect to such transfer;
(c) At least five (5) Business Days' prior to such Property Release notice of prepayment;
(d) A wire transfer of immediately available federal funds in an amount equal to the sum of (i) one hundred twenty five percent (125%) of the Allocated Loan Amount for the Release Premises as set forth on Schedule B attached hereto (the "Release Amount") and (ii) all accrued and unpaid interest with respect to the Release Amount and any other amounts owing to Lender in connection with the Release Premises, including Breakage Costs, ( as defined in the Note) if any, as set forth in Article 2, Section (c) of the Note;
(e) If applicable, all proposed documents related to the Release Premises Transferee and such documents, certificates and assurances that Lender shall reasonably request to evidence and confirm that the Release Premises is then continuing simultaneously with the Property Release being transferred to a Release Premises Transferee;
(other than an Event f) Payment of Default all Lender's costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the Property Release and the review and approval of the documents and information required to be delivered in connection therewith ("Property Release Expenses");
(g) Evidence satisfactory to Lender that would be eliminated the Aggregate Debt Service Coverage Ratio (hereinafter defined) for the twelve (12) month period immediately preceding the Property Release with respect to the Properties remaining encumbered by the liens of the Security Instruments after giving effect to the release of the Mortgaged Property proposed to be released pursuant to Section 7.1(k)), Borrower may from time to time obtain the release of one or more of the Mortgaged Properties from the Liens of the Loan Documents and 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(k), Borrower may Transfer such Mortgaged Property to an Affiliate of Borrower) upon satisfaction of the following conditions:
(i) Borrower shall deliver to Lender notice (a “Release Notice”) of its intent 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 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: (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(d), the applicable Release Price, plus (y) any additional amount required to be prepaid in accordance with Section 2.2(d) 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 amounts otherwise payable by Borrower under this 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 greater than the applicable DSCR Threshold; provided, however, that, except greater of (i) the Aggregate Debt Service Coverage Ratio with respect to all of the Properties for the twelve (12) months immediately preceding the date hereof (1.66 to 1.00; the "Origination DSCR") or (ii) the Aggregate Debt Service Coverage Ratio with respect to all of the Properties then encumbered by the liens of the Security Instruments immediately prior to such release, for the twelve (12) months immediately preceding the second calendar month prior to the date of the proposed Property Release (the "Current DSCR");
(h) If the Securities (as defined herein) are then rated by the Rating Agencies (as defined in the Security Instruments), the written confirmation of the Rating Agencies that the Property Release shall not result in a release downgrade, withdrawal or qualification of a Mortgaged Property the then current ratings by the applicable Rating Agencies of the Securities and otherwise in form and substance reasonably satisfactory to Lender and its counsel; and
(i) If the Operating Lease for the Release Premises (as defined in the related Security Instruments) has been terminated pursuant to Section 7.1(k), 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 36.1 of the amount required under clause (1)(y) above and the corresponding sections of the Mezzanine Loan AgreementsOperating Lease, into the Cash Reserve Account as additional collateral for the Loan (for the avoidance of doubtand, any release of a Mortgaged Property pursuant to Section 7.1(k) shall be subject to the satisfaction of the DSCR Threshold, and Borrower shall not be released from such requirement by depositing 100% of the Excess Transfer Proceeds as set forth in clause (II) above), and (III) during the continuance of the Spread Maintenance Period, pays to Lender and each Mezzanine Lender the applicable Spread Maintenance Amount on the amount so deposited into the Cash Reserve Account as if the Loan and the Mezzanine Loan had been prepaid in such amount on a 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 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 and the 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 Mezzanine Loan Documents (except that the Spread Maintenance Amount, which shall have been paid upon deposit of funds into the Cash Reserve Account, need not be paid a second time upon prepayment).
(iii) Lender shall have received a payoff letter or written confirmation from each Mezzanine Lender that satisfactory escrow arrangements in connection with the release of such Mortgaged Property have been established.
(b) Immediately upon satisfaction of the requirements in Sections 2.1, 2.2 or 7.1(k), as applicable, 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 such Release, the release Borrower that owned the Release Premises prior thereto (the "Release Premises Transferor") is the owner of a Property that remains encumbered by the lien of the Mortgaged Property proposed Security Instruments, an estoppel certificate from the Operating Tenant in form satisfactory to be released) shall not be unreasonably withheld, conditioned or delayed), as shall be necessary to release Lender stating that the applicable Mortgaged Property Operating Lease has been terminated and that the applicable portion Operating Tenant has released the Release Premises Transferor from all liability for the payment of any and all termination payments or any other Collateral securing payments due to the Loan with respect Operating Tenant pursuant to such Mortgaged Property (excluding any amounts retained in any Collateral Accounts with respect to such Mortgaged Property, except as otherwise expressly set forth herein) from the Liens terms of the Loan Documents (and/or, as applicable, Operating Lease and that the Qualified Letter(s) of Credit shall be correspondingly reduced). Any Mortgaged Property released pursuant to this Section 2.2 Release Premises Transferor has no further liability or Section 7.1(k) 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. 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 without representation or warranty (except that (i) Lender owns such portion of the Indebtedness; (ii) Lender has not encumbered such portion of the Indebtedness, except for Liens to be discharged concurrently obligation in connection with such assignment; and (iii) the full amount of the then-outstanding Indebtedness) and otherwise in accordance with Section 1.8.
(c) Immediately upon any release of Mortgaged Property pursuant to this Section 2.2 or Section 7.1(k), the Deferred Maintenance Amount and the Unfunded Obligations Amount required under this Agreement shall be reduced by an amount equal to the Unspent Allocated Deferred Maintenance Amount and the Unspent Allocated Unfunded Obligations Amount for such Mortgaged Property.
(d) Notwithstanding anything herein to the contrarysaid Operating Lease or, if the Net Proceeds Operating Lease on the Release Premises has not been terminated, an estoppel certificate from the Operating Tenant in form satisfactory to Lender that such Operating Lease, as it relates to the Release Premises, is and will remain in full force and effect following the Release Premises Transfer and that the Release Premises Transferor has no liability for the payment of a Transfer any termination payments or any other payments due to the Operating Tenant pursuant to the terms of a Mortgaged Property are less than the sum of its Minimum Operating Lease and that the Release Price and its aggregate “Minimum Release Price” under and as defined in the Mezzanine Loan Agreements, then the amount payable by Borrower under Section 2.2(a)(ii)(1)(x) Premises Transferor has no further liability or obligation in connection with its release shall be the Mortgage 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) after prepayments have been made that reduce the Principal Indebtedness to one-half of the Loan Amount, no release of a Mortgaged Property shall be permitted that would result in any increase in the Release Price Deficit; and
(iii) 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 and each Mezzanine Loan in proportion to the Release Price Deficit and the “Release Price Deficits” under and as defined in the respective Mezzanine Loan Agreements, respectively, in each case until reduced to zerosaid Operating Lease.
Appears in 1 contract
Property Releases. Subject to the terms and conditions set forth herein, Owner shall have the right, from time to time, on any Payment Date (aas defined in the Note) So long as to obtain a release (a "Property Release") of a Mortgaged Property from the lien of the related Mortgage (i) provided that no Event of Default under this Agreement, the Note, the Mortgage or any other Loan Document has occurred and is then continuing and (ii) subject to compliance with the provisions set forth below in this Section 61, legal, record, economic and beneficial ownership of the Mortgaged Property for which a Property Release is being requested (the "Release Premises") is simultaneously with the granting of the Property Release transferred (a "Release Premises Transfer") to and shall be owned immediately after such Property Release by a person(s), party(ies) or entity(ies) other than Owner or any general partner or managing member of Owner or any affiliate of Owner ("Release Premises Transferee"). In the event that the Owner seeks to release a Mortgaged Property from the lien of the related Mortgage, Lender shall release such Mortgaged Property from the lien of the related Mortgage and the Loan Documents, but only upon receipt by Lender of the following:
(a) At least thirty (30) days but no more than ninety (90) days prior written notice of Owner's request to obtain a release of the Release Premises;
(b) A certificate of Owner certifying the requirements set forth in Paragraph 61(h) of this Loan Agreement shall be true after giving effect to such transfer;
(c) At least three (3) Business Days' prior to such Property Release an Event irrevocable notice of Default prepayment and the Certification from Owner in the form attached hereto as Exhibit C;
(d) Intentionally Omitted;
(e) A wire transfer of immediately available federal funds in an amount equal to the sum of (i) the Release Price (defined below) and (ii) all accrued and unpaid interest with respect to the Note and any other amounts owing to Lender in connection with the Release Premises pursuant to this Agreement, the Note, the Mortgage or the other Loan Documents, including without limitation, the Breakage Costs, the Exit Fee and the Shortfall Interest Payment (each as defined in the Note);
(f) If applicable, all proposed documents related to the Release Premises Transferee and such documents, certificates and assurances that would Lender shall reasonably request to evidence and confirm that the Release Premises is simultaneously with the Property Release being transferred to a Release Premises Transferee;
(g) Payment of all Lender's costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the Property Release and the review and approval of the documents and information required to be eliminated delivered in connection therewith ("Property Release Expenses");
(h) Evidence satisfactory to Lender that the Aggregate Debt Service Coverage Ratio for the twelve (12) month period immediately preceding the Property Release with respect to the Mortgaged Properties remaining encumbered by the liens of the Mortgage after giving effect to the release of the Mortgaged Property proposed to be released pursuant to Section 7.1(k)), Borrower may from time to time obtain the release of one or more of the Mortgaged Properties from the Liens of the Loan Documents and 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(k), Borrower may Transfer such Mortgaged Property to an Affiliate of Borrower) upon satisfaction of the following conditions:
(i) Borrower shall deliver to Lender notice (a “Release Notice”) of its intent 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 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: (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(d), the applicable Release Price, plus (y) any additional amount required to be prepaid in accordance with Section 2.2(d) 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 amounts otherwise payable by Borrower under this 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 greater than the applicable DSCR Threshold; provided, however, that, except greater of (i) the Aggregate Debt Service Coverage Ratio with respect to a release of a Mortgaged Property pursuant to Section 7.1(k), 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 of the amount required under clause (1)(y) 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 Mortgaged Property pursuant to Section 7.1(k) shall be subject to the satisfaction of the DSCR Threshold, and Borrower shall not be released from such requirement by depositing 100% of the Excess Transfer Proceeds as set forth in clause (II) above), and (III) during the continuance of the Spread Maintenance Period, pays to Lender and each Mezzanine Lender the applicable Spread Maintenance Amount on the amount so deposited into the Cash Reserve Account as if the Loan and the Mezzanine Loan had been prepaid in such amount on a 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 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 and the 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 Mezzanine Loan Documents (except that the Spread Maintenance Amount, which shall have been paid upon deposit of funds into the Cash Reserve Account, need not be paid a second time upon prepayment).
(iii) Lender shall have received a payoff letter or written confirmation from each Mezzanine Lender that satisfactory escrow arrangements in connection with the release of such Mortgaged Property have been established.
(b) Immediately upon satisfaction of the requirements in Sections 2.1, 2.2 or 7.1(k), as applicable, 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 the Mortgaged Property proposed Properties for the twelve (12) months immediately preceding the date hereof (1.42 to be released1.00; the "Origination DSCR") shall not be unreasonably withheld, conditioned or delayed), as shall be necessary to release (ii) the applicable Mortgaged Property and the applicable portion of any other Collateral securing the Loan Aggregate Debt Service Coverage Ratio with respect to such all of the Mortgaged Property (excluding any amounts retained in any Collateral Accounts with respect Properties then encumbered by the liens of the Mortgage immediately prior to such Mortgaged Property, except as otherwise expressly set forth hereinrelease for the twelve (12) from months immediately preceding the Liens calendar month prior to the date of the Loan Documents proposed Property Release (and/or, as applicable, the Qualified Letter(s) of Credit shall be correspondingly reduced"Current DSCR"). Any Mortgaged Property released pursuant to this Section 2.2 or Section 7.1(k) 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. 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 without representation or warranty (except that (i) 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) and otherwise in accordance with Section 1.8.
(c) Immediately upon any release of Mortgaged Property pursuant to this Section 2.2 or Section 7.1(k), the Deferred Maintenance Amount and the Unfunded Obligations Amount required under this Agreement shall be reduced by an amount equal to the Unspent Allocated Deferred Maintenance Amount and the Unspent Allocated Unfunded Obligations Amount for such Mortgaged Property.
(d) 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 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 Mortgage Loan Percentage of such Net Proceeds, subject to the following:and
(i) If Securities are then rated by the Release Price Deficit (as defined below) may not at any time exceed 2% Rating Agencies, the written confirmation of the Principal Indebtedness;
(ii) after prepayments have been made Rating Agencies that reduce the Principal Indebtedness to one-half Property Release shall not result in a downgrade, withdrawal or qualification of the Loan Amount, no release of a Mortgaged Property shall be permitted that would result in any increase in then current ratings by the Release Price Deficit; and
(iii) if and to the extent the Release Price Deficit is greater than zero, all Excess Transfer Proceeds shall be applied toward prepayment applicable Rating Agencies of the Loan Securities and each Mezzanine Loan otherwise in proportion form and substance reasonably satisfactory to the Release Price Deficit Lender and the “Release Price Deficits” under and as defined in the respective Mezzanine Loan Agreements, respectively, in each case until reduced to zeroits counsel.
Appears in 1 contract
Sources: Loan Agreement (Lodgian Inc)
Property Releases. (a) So long as On or after the Lockout Period, provided no Event of Default is then continuing (other than an Event of Default that would be eliminated after giving effect to cured by the release of the Mortgaged Property proposed to be released pursuant to Section 7.1(k)applicable Permitted Release Parcel), is then continuing and all amounts then due and owing to Lender have been paid in full, Borrower may from time shall have the right, at its option, on not less than 30 days’ prior written notice to time Lender, to obtain the release of one or more of the Mortgaged Properties Permitted Release Parcels from the Liens of the Loan Documents and Transfer such Mortgaged Property to an unaffiliated third party in an arms’-length transaction (except thatDocuments, if the release is being effectuated pursuant to the provisions of Section 7.1(k), Borrower may Transfer such Mortgaged Property to an Affiliate of Borrower) upon satisfaction of provided that the following conditions:
conditions shall have been satisfied: (i) Borrower such release shall deliver to Lender notice (a “Release Notice”) be in connection with in connection with an arms’-length sale of its intent to release one or more Permitted Release Parcels to a Person that is not an affiliate 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 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.
Borrower; (ii) At the time of such release: (1) Borrower shall prepay a portion of Defease the Loan, in accordance with Section 2.1, in an amount equal to (x) subject to Section 2.2(d), the applicable Release Price, plus (y) any additional amount required to be prepaid in accordance with Section 2.2(d) in order to reduce the Release Price Deficit, which prepayment, in each case under clauses applicable to such Permitted Release Parcels; (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 amounts otherwise payable by Borrower under this Agreement), and (2iii) DSCR for the Fiscal Quarter Test Period then most recently ended, recalculated to include only income and expense attributable to the Mortgaged Properties remaining after the contemplated release and to exclude the interest expense and principal payments on the aggregate amount to be prepaidDefeased, shall be equal to or greater no less than the applicable DSCR Threshold; provided, however, that, except with respect to a release of a Mortgaged Property pursuant to Section 7.1(k), the DSCR Threshold need not be satisfied if at the time of such sale Borrower and provided further; (Iiv) prepays the Loan in an amount set forth in clause (1) above, (II) deposits 100% of any remaining Excess Transfer Proceeds, after payment of the amount required under clause (1)(y) 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 Mortgaged Property pursuant to Section 7.1(k) shall be subject to the satisfaction of the DSCR Threshold, and Borrower shall not be released from such requirement by depositing 100% of the Excess Transfer Proceeds as set forth in clause (II) above), and (III) during the continuance of the Spread Maintenance Period, pays to Lender and each Mezzanine Lender the applicable Spread Maintenance Amount on the amount so deposited into the Cash Reserve Account as if the Loan and the Mezzanine Loan had been prepaid in such amount on a 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 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 and the 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 Mezzanine Loan Documents (except that the Spread Maintenance Amount, which shall have been paid upon deposit of funds into the Cash Reserve Account, need not be paid a second time upon prepayment).
(iii) Lender shall have received a payoff letter or written confirmation from each Mezzanine Lender that satisfactory escrow arrangements in connection with the release of such Mortgaged Property have been established.
(b) Immediately upon satisfaction of the requirements in Sections 2.1, 2.2 or 7.1(k), as applicable, 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 the Mortgaged Property proposed or Properties, the Lender 80% Determination shall have been satisfied; (v) if the Loan has been Securitized, Borrower shall deliver to Lender an opinion of counsel in form and substance which would be released) shall 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 release and will not be unreasonably withheld, conditioned subject to tax on any “prohibited transactions” or delayed), “prohibited contributions” as shall be necessary to release the applicable Mortgaged Property and the applicable portion a result of any other Collateral securing the Loan with respect to such Mortgaged Property (excluding any amounts retained in any Collateral Accounts with respect to such Mortgaged Property, except as otherwise expressly set forth herein) from the Liens of the Loan Documents (and/or, as applicable, the Qualified Letter(s) of Credit shall be correspondingly reduced). Any Mortgaged Property released pursuant to this Section 2.2 or Section 7.1(k) 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. 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 without representation or warranty (except that (i) 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) and otherwise in accordance with Section 1.8.
(c) Immediately upon any release of Mortgaged Property pursuant to this Section 2.2 or Section 7.1(k), the Deferred Maintenance Amount and the Unfunded Obligations Amount required under this Agreement shall be reduced by an amount equal to the Unspent Allocated Deferred Maintenance Amount and the Unspent Allocated Unfunded Obligations Amount for such Mortgaged Property.
(d) 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 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 Mortgage 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) after prepayments have been made that reduce the Principal Indebtedness to one-half of the Loan Amount, no release of a Mortgaged Property shall be permitted that would result in any increase in the Release Price Deficit; and
(iii) 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 and each Mezzanine Loan in proportion to the Release Price Deficit and the “Release Price Deficits” under and as defined in the respective Mezzanine Loan Agreements, respectively, in each case until reduced to zero.
Appears in 1 contract
Sources: Loan Agreement (Parkway, Inc.)
Property Releases. Subject to the terms and conditions set forth herein, from and after the Defeasance LockOut Termination Date Borrowers shall have the right, from time to time, on any Scheduled Payment Date (aas defined in the Notes) So long as to obtain a release (a "Property Release") of a Property from the lien of the related Security Instrument (i) provided that no Event default under this Agreement, the Notes, the Security Instruments or any other Loan Documents, that in Lender's sole judgment is material, has occurred and is continuing, (ii) subject to compliance with the provisions set forth below in this Section 4 and in Section 6 of Default this Agreement; and (iii) provided that, unless Borrowers shall at the time of such Property Release be an entity that complies with subsection 8.4(a)(iv)(B) of the Security Instruments, legal, record, economic and beneficial ownership of the Property for which a Property Release is then continuing being requested (the "Release Premises") is simultaneously with the granting of the Property Release transferred (a "Release Premises Transfer") to and shall be owned immediately after such Property Release by a person(s), party(ies) or,entity(ies) other than an Event any Borrower, the managing member of Default any Borrower, or any general partner of any Borrower or any person, party or entity owned or controlled by any of the foregoing ("Release Premises Transferee"). In the event that would the Borrowers seeks to release a Property from the lien of the related Security Instrument, Lender shall release such Property from the lien of the related Security Instrument and the Loan Documents, but only upon receipt by Lender of the following:
A. At least thirty (30) days but no more than sixty (60) days prior written notice of its request to obtain a release of the Release Premises;
B. A certificate of each Borrower certifying the requirements set forth in Paragraphs 4.I. and 4.J. of this Loan Agreement shall be eliminated true after giving effect to the release of the Mortgaged Property proposed to be released pursuant to Section 7.1(k)), Borrower may from time to time obtain the release of one or more of the Mortgaged Properties from the Liens of the Loan Documents and Transfer such Mortgaged Property to an unaffiliated third party in an arms’-length transaction transfer;
C. At least three (except that, if the release is being effectuated pursuant to the provisions of Section 7.1(k), Borrower may Transfer such Mortgaged Property to an Affiliate of Borrower3) upon satisfaction of the following conditions:
(i) Borrower shall deliver to Lender notice (a “Release Notice”) of its intent 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 (as defined in the Notes) prior to the Business Day upon which the release is to be made and shall specify the Mortgaged such Property or Mortgaged 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 Release an irrevocable notice of legal counsel defeasance and the Servicercertification by Borrowers in the form attached hereto as Exhibit A;
D. Defeasance Collateral (defined below) incurred by Lender in connection with a release pursuant to this Section 2.2.Collateral Value (defined below) required under Paragraph 6 hereof;
(ii) At the time E. A wire transfer of such release: (1) Borrower shall prepay a portion of the Loan, in accordance with Section 2.1, immediately available federal funds in an amount equal to all sums due under the applicable Note or Notes under Section 6 of this Agreement and under the Loan Documents in connection with a defeasance;
F. Evidence satisfactory to Lender that, other than the Security Instruments, there are no liens (x) subject to Section 2.2(dexcept as permitted under the Security Instruments), mortgages, deeds of trust or other security instruments, as the applicable case may be, encumbering the Properties remaining encumbered by the lien of the Security Instruments, including without limitation a "bring down" or "date down" of the title insurance policies insuring the liens of the Security Instruments on such remaining Properties;
G. All proposed documents related to the Release PricePremises Transferee and such documents, plus (y) any additional amount certificates and assurances that Lender shall request to evidence and confirm that the Release Premises is simultaneously with the Property Release being transferred to a Release Premises Transferee;
H. Payment of all Lender's costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the Property from the lien of the related Security Instruments and the review and approval of the documents and information required to be prepaid delivered in accordance connection therewith ("Property Release Expenses");
I. Evidence satisfactory to Lender that the Aggregate Debt Service Coverage Ratio (hereinafter defined) for the twelve (12) month period immediately after the Property Release with Section 2.2(d) in order respect to reduce the Release Price Deficit, which prepayment, in each case under clauses (x) and (y), shall be accompanied Properties remaining encumbered by the applicable Spread Maintenance Amount, which prepayment shall be accompanied by liens of the other amounts specified in Section 2.1, to the extent applicable (and without duplication of any amounts otherwise payable by Borrower under this 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, Security Instruments shall be equal to or greater than the applicable DSCR Threshold; provided, however, that, except greater of (i) the Aggregate Debt Service Coverage Ratio with respect to a release of a Mortgaged Property pursuant to Section 7.1(k), 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 all of the amount required under clause Properties for the four (1)(y4) above and fiscal quarters immediately preceding the corresponding sections date hereof (the "Origination DSCR") or (ii) the Aggregate Debt Service Coverage Ratio with respect to the Properties then encumbered by the liens of the Mezzanine Loan AgreementsSecurity Instruments immediately prior to such release, into the Cash Reserve Account as additional collateral for the Loan four (for 4) fiscal quarters immediately preceding the avoidance of doubt, any release of a Mortgaged proposed Property pursuant Release (the "Current DSCR");
J. Evidence reasonably satisfactory to Section 7.1(kLender that Borrower is Solvent (hereinafter defined) shall be subject to the satisfaction of the DSCR Threshold, and Borrower shall not be released from such requirement rendered Insolvent (hereinafter defined) by depositing 100% the Property Release of the Excess Transfer Proceeds as set forth in clause Release Premises; and
K. If the Securities (II) above), and (III) during the continuance of the Spread Maintenance Period, pays to Lender and each Mezzanine Lender the applicable Spread Maintenance Amount on the amount so deposited into the Cash Reserve Account as if the Loan and the Mezzanine Loan had been prepaid in such amount on a 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 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 and the 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 Mezzanine Loan Documents (except that the Spread Maintenance Amount, which shall have been paid upon deposit of funds into the Cash Reserve Account, need not be paid a second time upon prepayment).
(iii) Lender shall have received a payoff letter or written confirmation from each Mezzanine Lender that satisfactory escrow arrangements in connection with the release of such Mortgaged Property have been established.
(b) Immediately upon satisfaction of the requirements in Sections 2.1, 2.2 or 7.1(k), as applicable, 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 the Mortgaged Property proposed to be released) shall not be unreasonably withheld, conditioned or delayed), as shall be necessary to release the applicable Mortgaged Property and the applicable portion of any other Collateral securing the Loan with respect to such Mortgaged Property (excluding any amounts retained in any Collateral Accounts with respect to such Mortgaged Property, except as otherwise expressly set forth herein) from the Liens of the Loan Documents (and/or, as applicable, the Qualified Letter(s) of Credit shall be correspondingly reduced). Any Mortgaged Property released pursuant to this Section 2.2 or Section 7.1(k) 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. 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 without representation or warranty (except that (i) 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) and otherwise in accordance with Section 1.8.
(c) Immediately upon any release of Mortgaged Property pursuant to this Section 2.2 or Section 7.1(k), the Deferred Maintenance Amount and the Unfunded Obligations Amount required under this Agreement shall be reduced by an amount equal to the Unspent Allocated Deferred Maintenance Amount and the Unspent Allocated Unfunded Obligations Amount for such Mortgaged Property.
(d) 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 Mezzanine Loan Agreements, Security Instruments) are then rated by the amount payable by Borrower under Section 2.2(a)(ii)(1)(x) in connection with its release shall be the Mortgage Loan Percentage of such Net Proceeds, subject to the following:
Rating Agencies (i) the Release Price Deficit (as defined below) may not at any time exceed 2% of the Principal Indebtedness;
(ii) after prepayments have been made that reduce the Principal Indebtedness to one-half of the Loan Amount, no release of a Mortgaged Property shall be permitted that would result in any increase in the Release Price Deficit; and
(iii) 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 and each Mezzanine Loan in proportion to the Release Price Deficit and the “Release Price Deficits” under and as defined in the respective Mezzanine Loan AgreementsSecurity Instruments), respectivelythe written confirmation of the Rating Agencies that neither the Property Release nor the Defeasance (defined below) shall result in a downgrade, withdrawal or qualification of the then current ratings by the applicable Rating Agencies of the Securities and otherwise in each case until reduced form and substance reasonably satisfactory to zeroLender and its counsel.
Appears in 1 contract
Sources: Loan Agreement (Developers Diversified Realty Corp)
Property Releases. Subject to the terms and conditions set forth herein, at any time after the Lockout Date (as defined in the Note), Borrower shall have the right, from time to time, on any Payment Date (as defined in the Note), or on any Business Day provided that a payment of the Interest Shortfall (as defined in the Note) is made, to obtain a release (a "Property Release") of a Property from the lien of the related Security Instruments (i) provided that no default under this Agreement, the Note, the Security Instruments or any other Loan Documents has occurred and is continuing, (ii) subject to compliance with the provisions set forth below in this Section 3 of this Agreement; and (iii) provided that legal, record, economic and beneficial ownership of the Property for which a Property Release is being requested (the "Release Premises") is simultaneously with the granting of the Property Release transferred (a "Release Premises Transfer") to and shall be owned immediately after such Property Release by a person(s), party(ies) or entity(ies) other than Borrower or any managing member or general partner of Borrower ("Release Premises Transferee"). In the event that the Borrower seeks to release a Property from the lien of the related Security Instrument, Lender shall release such Property from the lien of the related Security Instrument and the Loan Documents, but only upon receipt by Lender of the following:
(a) So long At least thirty (30) days but no more than ninety (90) days prior written notice of its request to obtain a release of the Release Premises;
(b) A certificate of Borrower certifying the requirements set forth in Paragraph 3(f) of this Agreement shall be true after giving effect to such transfer;
(c) A wire transfer of immediately available federal funds in an amount equal to 115% of the Allocated Loan Amount for the Release Premises as no Event set forth on Exhibit B attached hereto and made a part hereof (the "Release Amount"), together with (i) all accrued and unpaid interest on the amount of Default principal being prepaid, (ii) if such payment is then continuing not made on a Payment Date, the Interest Shortfall with respect to the amount prepaid, and (iii) all other than an Event sums due under the Note, the applicable Security Instrument and the applicable other Loan Documents in connection with a partial prepayment;
(d) All proposed documents related to the Release Premises Transferee and such documents, certificates and assurances that Lender shall reasonably request to evidence and confirm that the Release Premises is simultaneously with the Property Release being transferred to a Release Premises Transferee;
(e) Payment of Default all Lender's reasonable costs and expenses, including due diligence review costs and reasonable counsel fees and disbursements incurred in connection with the release of the Property from the lien of the related Security Instruments and the review and approval of the documents and information required to be delivered in connection therewith ("Property Release Expenses");
(f) Evidence reasonably satisfactory to Lender that would be eliminated the Aggregate Debt Service Coverage Ratio (hereinafter defined) for the twelve (12) month period immediately preceding the Property Release with respect to the Properties remaining encumbered by the liens of the Security Instruments after giving effect to the release of the Mortgaged Property proposed to be released pursuant to Section 7.1(k)), Borrower may from time to time obtain the release of one or more of the Mortgaged Properties from the Liens of the Loan Documents and 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(k), Borrower may Transfer such Mortgaged Property to an Affiliate of Borrower) upon satisfaction of the following conditions:
(i) Borrower shall deliver to Lender notice (a “Release Notice”) of its intent 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 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: (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(d), the applicable Release Price, plus (y) any additional amount required to be prepaid in accordance with Section 2.2(d) 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 amounts otherwise payable by Borrower under this 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 greater than the applicable DSCR Threshold; provided, however, that, except greater of (i) 1.80 to 1.00 (the "Origination DSCR") and (ii) the Aggregate Debt Service Coverage Ratio with respect to a release of a Mortgaged Property pursuant to Section 7.1(k), the DSCR Threshold need not be satisfied if at Properties then encumbered by 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 liens of the amount required under clause (1)(y) 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 Mortgaged Property pursuant Security Instruments immediately prior to Section 7.1(k) shall be subject to the satisfaction of the DSCR Threshold, and Borrower shall not be released from such requirement by depositing 100% of the Excess Transfer Proceeds as set forth in clause (II) above), and (III) during the continuance of the Spread Maintenance Period, pays to Lender and each Mezzanine Lender the applicable Spread Maintenance Amount on the amount so deposited into the Cash Reserve Account as if the Loan and the Mezzanine Loan had been prepaid in such amount on a 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 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 and the 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 Mezzanine Loan Documents (except that the Spread Maintenance Amount, which shall have been paid upon deposit of funds into the Cash Reserve Account, need not be paid a second time upon prepayment).
(iii) Lender shall have received a payoff letter or written confirmation from each Mezzanine Lender that satisfactory escrow arrangements in connection with the release of such Mortgaged Property have been established.
(b) Immediately upon satisfaction of the requirements in Sections 2.1, 2.2 or 7.1(k), as applicable, 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 the Mortgaged Property proposed to be released) shall not be unreasonably withheld, conditioned or delayed), as shall be necessary to release the applicable Mortgaged Property and the applicable portion of any other Collateral securing the Loan with respect to such Mortgaged Property (excluding any amounts retained in any Collateral Accounts with respect to such Mortgaged Property, except as otherwise expressly set forth herein) from the Liens of the Loan Documents (and/or, as applicable, the Qualified Letter(s) of Credit shall be correspondingly reduced). Any Mortgaged Property released pursuant to this Section 2.2 or Section 7.1(k) 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. At Borrower’s request, Lender will promptly assign twelve (12) months immediately preceding the portion second calendar month prior to the date of the Indebtedness secured by proposed Property Release (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 (i) 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) and otherwise in accordance with Section 1.8."Current DSCR");
(cg) Immediately upon If any release of Mortgaged Property pursuant to this Section 2.2 or Section 7.1(k), the Deferred Maintenance Amount and the Unfunded Obligations Amount required under this Agreement shall be reduced by an amount equal to the Unspent Allocated Deferred Maintenance Amount and the Unspent Allocated Unfunded Obligations Amount for such Mortgaged Property.
Securities (d) 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 Mezzanine Loan AgreementsSecurity Instruments) have been issued, then the amount payable by Borrower under Section 2.2(a)(ii)(1)(x) in connection with its release shall be the Mortgage 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% written confirmation of the Principal Indebtedness;
Rating Agencies (ii) after prepayments have been made that reduce the Principal Indebtedness to one-half of the Loan Amount, no release of a Mortgaged Property shall be permitted that would result in any increase in the Release Price Deficit; and
(iii) 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 and each Mezzanine Loan in proportion to the Release Price Deficit and the “Release Price Deficits” under and as defined in the respective Mezzanine Loan AgreementsSecurity Instruments) that the Property Release shall not result in a downgrade, respectively, withdrawal or qualification of the then current ratings by the applicable Rating Agencies of the Securities and otherwise in each case until reduced form and substance reasonably satisfactory to zeroLender and its counsel (a "No Downgrade Letter").
Appears in 1 contract
Property Releases. (a) So long as Provided no Event of Default is then continuing (other than an Event of Default that which would be eliminated after giving effect to cured as a result of the release of the Mortgaged applicable Property proposed to be released and the payment of the Release Price in connection with the release of such Property pursuant to and in accordance with this Section 7.1(k)2.2) and all amounts then due and owing to Lender have been paid in full (or such amounts will be paid in full simultaneously with the payment of the Release Price in connection with the release of such Property pursuant to and in accordance with this Section 2.2), Borrower may from time shall have the right, at its option, on not less than 30 days’ prior written notice to time Lender, to obtain the release of one or more of the Mortgaged Properties from the Liens of the Loan Documents and Transfer such Mortgaged Property to an unaffiliated third party in an arms’-length transaction (except thatDocuments, if the release is being effectuated pursuant to the provisions of Section 7.1(k), Borrower may Transfer such Mortgaged Property to an Affiliate of Borrower) upon satisfaction of provided that the following conditionsconditions shall have been satisfied:
(i) Borrower shall deliver to Lender notice (a “Release Notice”) of its intent 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 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: (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(d), the applicable Release Price, plus (y) any additional amount required to be prepaid in accordance with Section 2.2(d) 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, ;
(ii) The Master Lease shall be amended in order to (A) remove the extent applicable (and without duplication of any amounts otherwise payable by Borrower under this Agreement), Property therefrom and (2B) DSCR for reduce the Fiscal Quarter then most recently ended, recalculated to include only income and expense attributable to Master Lease Rents due thereunder by 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 greater than the applicable DSCR Threshold; provided, however, that, except with respect to a release of a Mortgaged Property pursuant to Section 7.1(k), 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 of the amount required Master Lease Rents which are due under clause (1)(y) above and the corresponding sections of the Mezzanine Loan AgreementsMaster Lease for such Property, into the 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(k) shall be subject to the satisfaction of the DSCR Threshold, and Borrower shall not be released from such requirement by depositing 100% of the Excess Transfer Proceeds as set forth in clause (II) above), and (III) during the continuance of the Spread Maintenance Period, pays to Lender and each Mezzanine Lender the applicable Spread Maintenance Amount on the amount so deposited into the Cash Reserve Account as if the Loan and the Mezzanine Loan had been prepaid in such amount on a 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 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 and the 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 Mezzanine Loan Documents (except that the Spread Maintenance Amount, which shall have been paid upon deposit of funds into the Cash Reserve Account, need not be paid a second time upon prepayment).Master Lease;
(iii) Such release shall be obtained in connection with the sale of such Property to a third party not Affiliated with Borrower;
(iv) Lender shall have received reasonably satisfactory evidence that the Mezzanine Borrower shall have satisfied all of the conditions to the proposed release set forth in each of the Mezzanine Loan Agreement (including a payoff letter or and written confirmation from each the Mezzanine Lender that satisfactory escrow arrangements in connection with the release of such Mortgaged Property have been established); and
(v) Borrower shall reimburse Lender for any actual, documented out-of-pocket costs and expenses incurred by Lender in connection with this Section 2.2 (including the reasonable fees and expenses of legal counsel and the reasonable out-of-pocket expenses of the Servicer).
(b) Immediately upon Upon satisfaction of the requirements set forth in Sections 2.1, 2.2 or 7.1(k), as applicablethis Section 2.2, Lender shall will execute and deliver to Borrower such instruments, prepared by Borrower and reasonably 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 the Mortgaged Property proposed to be released) shall not be unreasonably withheld, conditioned or delayed)Lender, as shall be necessary to release the applicable Mortgaged Property and the applicable portion of any other Collateral securing the Loan with respect to such Mortgaged Property (excluding any amounts retained in any Collateral Accounts with respect to such Mortgaged Property, except as otherwise expressly set forth herein) from the Liens of the Loan Documents (and/or, as applicable, the Qualified Letter(s) of Credit shall be correspondingly reduced). Any Mortgaged Property released pursuant to this Section 2.2 or Section 7.1(k) 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. 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 without representation or warranty (except that (i) 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) and otherwise in accordance with Section 1.8.
(c) Immediately upon any Notwithstanding the foregoing or anything herein to the contrary, in connection with the release of Mortgaged any Property pursuant to this Section 2.2 or Section 7.1(k)2.2, if an amount equal to eighty-five percent (85%) of the Deferred Maintenance Amount and Net Sales Proceeds from the Unfunded Obligations Amount required under this Agreement sale of such Property is greater than the Release Price for such Property, then Borrower shall be reduced by deposit an amount equal to the Unspent Allocated Deferred Maintenance Amount difference between eighty-five percent (85%) of the Net Sales Proceeds from the sale of such Property and the Unspent Allocated Unfunded Obligations Release Price paid by Borrower (the “Release Deposit Amount”) into the TI/LC and Capital Expenditure Reserve Account to be disbursed pursuant to Section 3.5 hereof, and such Release Deposit Amount for such Mortgaged Propertyshall not be applied as a prepayment of the Loan in accordance with Section 2.1 hereof.
(d) Notwithstanding anything herein clause (a)(iii) of this Section 2.2, Borrower shall be permitted to release Properties to an Affiliate of Borrower, provided that (1) if after consummating such release the contrary, if aggregate Allocated Loan Amounts of the Net Proceeds of a Transfer of a Mortgaged applicable Property and all other Properties previously released pursuant to this Section 2.2(d) are less than the sum of its Minimum Release Price and its aggregate “Minimum Release Price” under and as defined in the 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 Mortgage Loan Percentage of such Net Proceeds, subject to the following:
(i) the Release Price Deficit (as defined below) may not at any time exceed 2or equal 20% of the Principal Indebtedness;
(ii) after prepayments have been made that reduce the Principal Indebtedness to one-half of the Loan Amount, no then the Net Sales Proceeds with respect to the release of a Mortgaged such Property shall not be permitted that would result less than the greater of (a) the fair market value of such Property (based on a current Appraisal ordered by and acceptable to Lender in any increase its reasonable discretion and at Borrower’s sole cost and expense) and (b) the appraised value of such Property on the Closing Date, and (2) for all other releases to an Affiliate of Borrower pursuant to this Section 2.2, the Net Sales Proceeds with respect to such release shall not be less than the greater of (a) the average of the fair market value of such Property as determined by two current Appraisals, one appraisal ordered by Borrower and one Appraisal ordered by Lender (both of which Appraisals shall be shall be acceptable to Lender in its reasonable discretion and at Borrower’s sole cost and expense) and (b) the appraised value of such Property on the Closing Date, provided, that, with respect to each of the foregoing clauses (1) and (2), in no event shall the Net Sales Proceeds be less than the Release Price Deficit; and
(iii) 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 and each Mezzanine Loan in proportion to the Release Price Deficit and the “Release Price Deficits” under and as defined in the respective Mezzanine Loan Agreements, respectively, in each case until reduced to zeroPrice.
Appears in 1 contract
Sources: Loan Agreement (Toys R Us Inc)
Property Releases. Subject to the terms and conditions set forth herein, the Issuer shall have the right, from time to time, on any Payment Date, to obtain a release (a "Property Release") of a Property (a "Released Property") from the lien of this Indenture and the related Security Instrument in connection with (A) the repurchase or substitution of a Property by USRPO in accordance with the Contribution Agreement (a "Seller Release"), (B) the repurchase or substitution by the Property Manager of a Property leased under a Delinquent Lease or a Defaulted Lease in accordance with the Property Management Agreement (a "Property Manager Release"), (C) the purchase of a Property by a Tenant under a Tenant Purchase Option (a "Tenant Release"), (D) the sale of a property by the Issuer to a Person other than the Issuer or its general partner in accordance with Section 8.03(b) (an "Issuer Release"), or (E) the substitution of a Property by the Limited Partners in accordance with Section 8.03(b) (a "Partner Release"). In the event that the Issuer seeks to release a Property from the lien of this Indenture and the related Security Instrument in connection with any of the foregoing, the Indenture Trustee shall release such Property from the lien of this Indenture and the related Security Instrument (and upon the Property Manager's written request and certification as to the satisfaction of the requirements of this Section, the Indenture Trustee shall execute and deliver to the Property Manager such instruments and other documents, prepared by the Property Manager, as the Property Manager may request in order to effectuate such Property Release), but only upon receipt by the Indenture Trustee of the following:
(a) So long At least fifteen (15) days but no more than ninety (90) days prior to the Payment Date on which the Issuer is requesting such Property Release, a written notice of the Issuer in the form attached hereto as no Event Exhibit E (a "Request for Release"), which includes an Officer's Certificate of Default is then continuing the Issuer certifying that the requirements set forth in Sections 8.01(f) through (other than an Event of Default that would j) shall be eliminated true after giving effect to such transfer and on which the release Indenture Trustee may conclusively rely;
(b) At least five (5) Business Days prior to such Property Release notice of the Mortgaged Property proposed prepayment with respect to be released pursuant to Section 7.1(k)), Borrower may from time to time obtain the release of one or more of the Mortgaged Properties from the Liens of the Loan Documents and Transfer such Mortgaged Property to an unaffiliated third party in an arms’-length transaction (except that, if the release is being effectuated pursuant any Release Amount applicable to the provisions of Section 7.1(k), Borrower may Transfer such Mortgaged Property to an Affiliate of Borrower) upon satisfaction of the following conditions:related Released Property;
(ic) Borrower shall deliver to Lender notice (a “Release Notice”) A wire transfer into the Collection Account of its intent 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 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: (1) Borrower shall prepay a portion of the Loan, in accordance with Section 2.1, immediately available federal funds in an amount equal to the sum of any Release Amount and any other amounts owing to the Indenture Trustee in connection with the Released Property;
(d) Such documents, certificates and assurances that the Indenture Trustee shall reasonably request to evidence and confirm that such Property Release complies with the provisions of this Section 8.01;
(e) Payment of all of the Indenture Trustee's reasonable costs and expenses, including reasonable counsel fees and disbursements incurred in connection with the Property Release and the review and approval of the documents and information required to be delivered in connection therewith ("Property Release Expenses");
(f) With respect to (i) any Property Manager Release or Partner Release that will result in the aggregate Appraised Value of all Properties released in connection with substitutions by the Property Manager and the Limited Partners since the Closing Date exceeding 10% of the initial Total Appraised Value of the Properties or (ii) any Seller Release in connection with the substitution of a Defective Property in accordance with the Contribution Agreement, the written consent of the Certificate Insurer to such Property Release, which consent is subject to the payment of $5,000 per substitution request to the Certificate Insurer; provided, further, that prior to such substitutions exceeding 10% of the initial Total Appraised Value of the Properties, the Certificate Insurer shall have the right to audit any substitutions by the Property Manager and the Limited Partners once every six months to confirm that the substitutions made since the prior audit (if any) satisfy the requirements of this Section 8.01. The cost of any such audit shall be paid by the Property Manager or the Limited Partners as the case may be;
(g) With respect to any Property Release in connection with the substitution of a Substitute Property, (i) certification by the Property Manager that the Substitute Property is a Qualified Substitute Property, and (ii) all documentation necessary to create a valid and enforceable first priority lien on the Substitute Property in favor of the Indenture Trustee, including, without limitation, all of the documents constituting the related Lease File with respect to such Substitute Property;
(h) With respect to any Property Release in connection with a substitution by the Property Manager or the Limited Partners, (i) confirmation from S&P that the proposed substitution will not result in a downgrade, qualification or withdrawal of the ratings then assigned to the Grantor Trust Certificates (without regard to the MBIA Policy) and (ii) following 15 business days notice to Moody's of a proposed substitution, no notice from Moody's that such substitution will result in a downgrade, qualification or withdrawal of the ratings then assigned to the Grantor Trust Certificates (without regard to the MBIA Policy) if either (x) subject to Section 2.2(d), such proposed substitution would result in the applicable Release Price, plus aggregate Appraised Value of all Released Properties for which substitutions were made exceed 5% of the initial Total Appraised Value of the Properties or (y) such proposed substitution would increase any additional amount required of the highest five Tenant concentrations above its concentration as of the Closing Date;
(i) After giving effect to be prepaid any such Property Release in accordance connection with Section 2.2(da substitution by the Limited Partners or the Property Manager, the aggregate Appraised Value of all Released Properties substituted for by either the Limited Partners or the Property Manager does not exceed either (A) $50,908,712 since the Closing Date or (B)(I) in order to reduce the Release Price Deficit, which prepaymentcase of the Limited Partners $10,181,742 and (II) in the case of the Property Manager $25,454,356, 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 during any amounts otherwise payable by Borrower under this 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 greater than the applicable DSCR Threshold; provided, however, that, except with respect to a release of a Mortgaged Property pursuant to Section 7.1(k), 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 of the amount required under clause (1)(y) 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 Mortgaged Property pursuant to Section 7.1(k) shall be subject to the satisfaction of the DSCR Threshold, and Borrower shall not be released from such requirement by depositing 100% of the Excess Transfer Proceeds as set forth in clause (II) above), and (III) during the continuance of the Spread Maintenance Period, pays to Lender and each Mezzanine Lender the applicable Spread Maintenance Amount on the amount so deposited into the Cash Reserve Account as if the Loan and the Mezzanine Loan had been prepaid in such amount on a 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 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 and the 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 Mezzanine Loan Documents (except that the Spread Maintenance Amount, which shall have been paid upon deposit of funds into the Cash Reserve Account, need not be paid a second time upon prepayment).
(iii) Lender shall have received a payoff letter or written confirmation from each Mezzanine Lender that satisfactory escrow arrangements in connection with the release of such Mortgaged Property have been established.
(b) Immediately upon satisfaction of the requirements in Sections 2.1, 2.2 or 7.1(k), as applicable, 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 the Mortgaged Property proposed to be released) shall not be unreasonably withheld, conditioned or delayed), as shall be necessary to release the applicable Mortgaged Property and the applicable portion of any other Collateral securing the Loan with respect to such Mortgaged Property (excluding any amounts retained in any Collateral Accounts with respect to such Mortgaged Property, except as otherwise expressly set forth herein) from the Liens of the Loan Documents (and/or, as applicable, the Qualified Letter(s) of Credit shall be correspondingly reduced). Any Mortgaged Property released pursuant to this Section 2.2 or Section 7.1(k) 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. 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 without representation or warranty (except that (i) 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) and otherwise in accordance with Section 1.8.
(c) Immediately upon any release of Mortgaged Property pursuant to this Section 2.2 or Section 7.1(k), the Deferred Maintenance Amount and the Unfunded Obligations Amount required under this Agreement shall be reduced by an amount equal to the Unspent Allocated Deferred Maintenance Amount and the Unspent Allocated Unfunded Obligations Amount for such Mortgaged Property.
(d) 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 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 Mortgage 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) after prepayments have been made that reduce the Principal Indebtedness to one-half of the Loan Amount, no release of a Mortgaged Property shall be permitted that would result in any increase in the Release Price Deficit12 month period; and
(iiij) if After giving effect to any such Property Release related to an Issuer Release in connection with a sale of a Property by the Issuer, the Remaining Pool Criteria are satisfied and any Early Amortization Event does not exist; provided that the aggregate Appraised Value of all such Released Properties related to the extent the Release Price Deficit is greater than zero, all Excess Transfer Proceeds shall be applied toward prepayment Issuer Releases in any 12 month period may not exceed 10% of the Loan and each Mezzanine Loan in proportion to Total Appraised Value of the Release Price Deficit and Properties as of the “Release Price Deficits” under and as defined in the respective Mezzanine Loan Agreements, respectively, in each case until reduced to zeroCut-off Date.
Appears in 1 contract