Release Parcel. (a) In the event Borrower desires to obtain a partial release of the Lien of the Mortgage from a Release Parcel, Lender shall release the Lien of the Mortgage (and related Loan Documents) from such Release Parcel upon satisfaction of the following conditions precedent: (i) Borrower shall provide Lender not less than thirty (30) days notice (or a shorter period of time if permitted by Lender in its sole discretion) specifying a date which date shall not be earlier than October 1, 2005 (the "PARTIAL RELEASE DATE") on which the partial release is to occur, provided, however, that Borrower may postpone the Partial Release Date from time to time as long as the extended date is at least five (5) Business Days after notice of such extension; (ii) Borrower shall have delivered to Lender at Borrower's option, (A) an endorsement to the Title Insurance Policy (which would be satisfied by an acceptable CLTA 116.7 and 123.1 or 123.2 (as applicable, with parking) endorsements to title), (B) an opinion of counsel (from counsel reasonably acceptable to Lender), (C) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) or (D) a letter from the appropriate Governmental Authority indicating that the Release Parcel has been legally subdivided for zoning lot purposes from the portion of the Property that would remain encumbered by the Lien of the Mortgage after the release of the Release Parcel (the "REMAINING PROPERTY") pursuant to a zoning lot subdivision in accordance with applicable Legal Requirements and that the Release Parcel and Remaining Property are each otherwise in compliance with all applicable zoning Legal Requirements; (iii) Borrower shall have delivered to Lender, at Borrower's option, (A) an endorsement to the Title Insurance Policy, (B) an opinion of counsel (from counsel reasonably acceptable to Lender); or (C) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), indicating that the Remaining Property separately conforms to and is in material compliance with all applicable Legal Requirements and constitutes a separate tax lot(s), provided, however, that if the Remaining Property and the Release Parcel have not been assessed as separate tax lots on or before the Partial Release Date, then the conditions of this subsection (v) relating to separate tax lot(s) shall be satisfied if (X) (1) Borrower delivers to Lender an opinion of counsel (from counsel reasonably acceptable to Lender); (2) a letter from the appropriate Governmental Authority, (3) an endorsement to the Title Insurance Policy or (4) any other letter or certification that Lender deems acceptable to conclude that Borrower has performed all actions and obtained all consents necessary in order for the Remaining Property and the Release Parcel to be assessed as separate tax lots and that the only actions required in order for separate tax lots to be created are purely ministerial acts by the applicable taxing authority (such as assigning tax parcel identification numbers) and that separate tax lots will be created in the ordinary course no later than six (6) months after the Partial Release Date, (Y) Borrower delivers to Lender evidence that the transferee of the Release Parcel has agreed to pay its pro rata share of Taxes allocable to the Release Parcel until such parcel is separately assessed (and thereafter is responsible for all Taxes assessed against the Release Parcel) and (Z) the amount of funds held in the Tax and Insurance Account, if any, on account of the Remaining Property shall be determined based upon the Taxes due on both the Remaining Property and the Release Parcel and deposits in such amounts into the Tax and Insurance Account shall continue, until the Remaining Property and the Release Parcel are assessed as separate tax lots and Borrower delivers one of the items described in (A) through (C) above (in which event, Lender shall use only the Taxes due in connection with the Remaining Property as a basis for determining deposits into the Tax Account on account of the Remaining Property); (iv) Borrower shall have delivered to Lender a certificate from an architect or engineer (from an architect or engineer reasonably acceptable to Lender and licensed to practice in the State), a Title Policy Endorsement or other evidence reasonably satisfactory to Lender and an Officer's Certificate with supporting documentation indicating that (A) the Release Parcel is not necessary for the uses of the Remaining Property, including, without limitation, for support, access, driveways, parking, utilities, drainage flows or any other purpose, (after giving effect to any easements therefore reserved over the Release Parcel for the benefit of the Remaining Property) and (B) sufficient parking remains on the Remaining Property to comply with the ▇▇▇▇▇▇▇▇ Lease, with any applicable REA and all applicable Legal Requirements, and which is adequate for the proper use and enjoyment of the Remaining Property; (v) if required to do so in order to satisfy applicable Legal Requirements, Borrower shall have delivered to Lender evidence that Borrower and other parties to the Release Parcel REA have signed the Release Parcel REA substantially in the form attached hereto as Exhibit B and have complied with all requirements of and obtained all approvals required under the Release Parcel REA; (vi) Borrower shall have delivered a survey of the Release Parcel and the Remaining Property prepared by a surveyor licensed in the State which conforms to the metes and bounds description attached as Exhibit C-1. Lender shall have the right to use its reasonable discretion to approve any variation to the attached metes and bounds description; (vii) Borrower shall have delivered to Lender on the date of the release an endorsement to the Title Insurance Policy insuring the Mortgage reflecting the partial release and (A) insuring Lender's interest in any easements created in connection with the partial release, (B) extending the effective date of such Title Insurance Policy to the effective date of the partial release, and (C) confirming no change in the priority of the Mortgage on the Remaining Property or in the amount of the insurance or the coverage under such Title Insurance Policy; (viii) Borrower shall deliver to Lender an Officer's Certificate certifying that the requirements set forth in this Section 7.6 have been satisfied; (ix) if the Loan is part of a Securitization, Lender shall have received confirmation in writing from the Rating Agencies to the effect that the partial release and the anticipated improvements to be placed on the Release Parcel will not result in a withdrawal, qualification or downgrade of the respective ratings in effect immediately prior to such partial release for the Securities issued in connection with the Securitization that are then outstanding; (x) if the Loan is part of a Securitization, Borrower shall deliver to Lender an opinion of counsel acceptable to Lender and the Rating Agencies (issued by counsel acceptable to Lender and the Rating Agencies) that the consummation of the transactions contemplated under this Section 7.6 would not constitute a "significant modification" of the Loan under Section 1001 of the IRS Code or otherwise cause a tax to be imposed on a "prohibited transaction" by any REMIC Trust; (xi) No Event of Default shall exist hereunder; (xii) Borrower shall deliver to Lender such other certificates, documents or instruments as Lender may reasonably request; and (xiii) Borrower shall pay all costs and expenses of Lender incurred in connection with the partial release, including Lender's reasonable attorneys' fees and expenses. (b) In addition to requirements set forth in subsection (a) above (with the exception of the requirement set forth under (a)(iv), and (a)(v) which shall not be applicable), if Borrower desires to obtain a parcel release of the Lien of the Mortgage from the Release Parcel in order to facilitate the addition or expansion of improvements on the Property for retail, office or warehouse purposes, which addition or expansion shall be compatible with the use and operation of the Property as a warehouse/distribution center (the "EXPANSION") Lender shall release the Lien of the Mortgage (and the Related Loan Documents) from such Release Parcel upon satisfaction of the following conditions precedent: (i) Borrower shall have delivered to Lender preliminary plans and drawings for the improvements to be built on the Release Parcel together with a certificate from an architect (licensed to practice in the State in which the Property is located and reasonably acceptable to Lender) certifying that such plans and drawings and the improvements to be constructed pursuant thereto will comply with all Legal Requirements, including that Borrower shall be able to obtain a new or amended certificate of occupancy for the improvements upon completion of the improvements (to the extent that a determination of compliance can be made generally on the basis of preliminary plans and drawings), and Lender shall have approved such plans and drawings, which approval shall be reasonable to an institutional lender and not be unreasonably conditioned, withheld or delayed; (ii) Borrower shall have delivered to Lender a certificate from an architect or engineer (licensed to practice in the State in which the Property is located and reasonably acceptable to Lender) to the effect that any improvements proposed to be built on the Release Parcel will not adversely affect the structural integrity of the Remaining Property; (iii) Borrower shall have delivered to Lender an Officer's Certificate as to the proposed use of such Release Parcel, its compatibility with a warehouse/distribution center and its effects on the operation and use of the Remaining Property; (iv) In place of the metes and bounds description attached as Exhibit C-1, Borrower shall have delivered a survey of the Release Parcel and the Remaining Property prepared by a surveyor licensed in the State which conforms to the metes and bounds description attached as Exhibit C-2. Lender shall have the right to use its reasonable discretion to approve any variation to the attached metes and bounds description; (v) Borrower shall have delivered to Lender evidence that Borrower and other parties to the Release Parcel REA have signed the Release Parcel REA substantially in the form attached hereto as Exhibit B and have complied with all requirements of and obtained all approvals required under the Release Parcel REA (vi) The transferee of the Release Parcel shall be responsible for all costs and expenses associated with the design, construction, maintenance and repair of all improvements associated with the Expansion; and (vii) Borrower Principal shall provide Lender with a completion guaranty for the benefit of Borrower and its successors and/or assigns in a form that is satisfactory to Lender with respect to any demolition, construction, or other work done or proposed to be done on or affecting the Remaining Property in connection with the Expansion; (c) If Borrower has elected to obtain a partial release of the Release Parcel from the Lien of the Mortgage and the requirements of this Section 7.6 have been satisfied, the Release Parcel shall be released from the Lien of the Mortgage and other related Loan Documents, and Lender shall consent to, and subordinate the Lien of the Mortgage encumbering the Remaining Property to, the Release Parcel REA delivered in connection with such partial release. In connection therewith, Borrower shall submit to Lender, not less than thirty (30) days prior to the Partial Release Date (or such shorter time as is acceptable to Lender in its sole discretion), a partial release of Lien of the Mortgage and other applicable, related Loan Documents for execution by Lender and a consent and subordination to the REA for execution by Lender. Such partial release and consent and subordination shall be in a form appropriate in the jurisdiction in which the Remaining Property and the Release Parcel are located and shall contain standard provisions protecting the rights of a releasing lender with respect to the Remaining Property. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such partial release, together with an Officer's Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such partial release in accordance with the terms of this Agreement. Borrower shall pay all reasonable costs, taxes and expenses associated with the partial release of the Lien of the Mortgage, including Lender's reasonable attorneys' fees. Borrower shall cause title to the Release Parcel to be transferred to and held by a Person other than Borrower. Lender's release of the Release Parcel shall be deemed to mean that Borrower has satisfied or that Lender has waived any of the required conditions set forth within this Section 7.6.
Appears in 1 contract
Sources: Loan Agreement (Ashworth Inc)
Release Parcel. Lender shall, upon the written request of Borrower, release (awithout any prepayment of Debt or release fee other than the payment of expenses set forth below) In from the event Borrower desires to obtain a partial release Mortgage, the Assignment of Leases and Rents and the UCC Financing Statements of those parts of the Lien of the Mortgage from Properties, more particularly described on Schedule V attached hereto as Future Construction Area Tract No. 1 and Future Construction Area Tract No. 2 (each, a “Release Parcel, Lender shall release the Lien of the Mortgage (and related Loan Documents”) from such Release Parcel upon satisfaction of each of the following conditions precedent:
(ia) Borrower no Event of Default shall provide Lender not less than thirty (30) days have occurred and be continuing, nor shall have there occurred any event which would, with the giving of notice (or a shorter period passage of time if permitted by Lender in its sole discretion) specifying a date which date shall not be earlier than October 1time, 2005 (the "PARTIAL RELEASE DATE") on which the partial release is to occuror both, provided, however, that Borrower may postpone the Partial Release Date from time to time as long as the extended date is at least five (5) Business Days after notice constitute an Event of such extensionDefault;
(b) the Properties, after giving effect to the subdivision and conveyance of the Release Parcel, will (i) comply with all zoning ordinances including without limitation those related to parking, lot size and density, or a variance with respect thereto shall have been obtained, (ii) Borrower shall have delivered be a separate tax parcel, and not be subject to Lender at Borrower's optionany lien for taxes due or not yet due attributable to the Release Parcel, (Aiii) comply with all subdivision ordinances and regulations, and (iv) if necessary, have an endorsement appurtenant easement for utilities, parking and access currently crossing or located on the Release Parcel;
(c) receipt by Lender of endorsements to the Title Insurance Policy for the Properties insuring each of the items set forth in clause (which would be satisfied b) above reasonably satisfactory to Lender;
(d) Borrower shall convey the Release Parcel, concurrently with the release, to an entity other than the Borrower;
(e) payment to the Lender by an acceptable CLTA 116.7 Borrower of its reasonable fees and 123.1 or 123.2 expenses incurred in evaluating and documenting the release, including, without limitation, reasonable attorneys’ fees and filing fees;
(as applicablef) Lender, with parking) endorsements to title)at its election, (B) may obtain, at Borrower’s expense, an opinion of counsel (from counsel reasonably acceptable to Lender), (C) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) or (D) a letter from the appropriate Governmental Authority indicating that the Release Parcel has been legally subdivided for zoning lot purposes from the portion of the Property that would remain encumbered by the Lien of the Mortgage after the release of the Release Parcel will not cause (i) any adverse tax consequences to the "REMAINING PROPERTY"REMIC or any holders of any Securities, (ii) pursuant the Mortgage to fail to be a zoning lot subdivision Qualifying Security Instrument under applicable federal law relating to REMICs or (iii) result in accordance with applicable Legal Requirements and that a taxation of the Release Parcel and Remaining Property are each otherwise in compliance with all applicable zoning Legal Requirementsincome of the loans to the REMIC or cause a loss of REMIC status;
(iiig) Borrower If requested by Lender, each Rating Agency shall have delivered to Lender, at Borrower's option, (A) an endorsement to the Title Insurance Policy, (B) an opinion of counsel (from counsel reasonably acceptable to Lender); or (C) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), indicating written confirmation that the Remaining Property separately conforms to and is in material compliance with all applicable Legal Requirements and constitutes a separate tax lot(s), provided, however, that if the Remaining Property and the Release Parcel have not been assessed as separate tax lots on or before the Partial Release Date, then the conditions of this subsection (v) relating to separate tax lot(s) shall be satisfied if (X)
(1) Borrower delivers to Lender an opinion of counsel (from counsel reasonably acceptable to Lender); (2) a letter from the appropriate Governmental Authority, (3) an endorsement to the Title Insurance Policy or (4) any other letter or certification that Lender deems acceptable to conclude that Borrower has performed all actions and obtained all consents necessary in order for the Remaining Property and the Release Parcel to be assessed as separate tax lots and that the only actions required in order for separate tax lots to be created are purely ministerial acts rating issued by the applicable taxing authority (such as assigning tax parcel identification numbers) and that separate tax lots will be created in the ordinary course no later than six (6) months after the Partial Release Date, (Y) Borrower delivers to Lender evidence that the transferee of the Release Parcel has agreed to pay its pro rata share of Taxes allocable to the Release Parcel until such parcel is separately assessed (and thereafter is responsible for all Taxes assessed against the Release Parcel) and (Z) the amount of funds held in the Tax and Insurance Account, if any, on account of the Remaining Property shall be determined based upon the Taxes due on both the Remaining Property and the Release Parcel and deposits in such amounts into the Tax and Insurance Account shall continue, until the Remaining Property and the Release Parcel are assessed as separate tax lots and Borrower delivers one of the items described in (A) through (C) above (in which event, Lender shall use only the Taxes due Rating Agency in connection with the Remaining Property securitization of any Securities will not, as a basis for determining deposits into the Tax Account on account result of the Remaining Property)proposed release of the Release Parcel, be downgraded from the then current ratings thereof, qualified or withdrawn;
(ivh) Borrower shall have delivered to Lender a certificate from an architect or engineer (from an architect or engineer reasonably acceptable to Lender and licensed to practice in the State), a Title Policy Endorsement or other evidence reasonably satisfactory to Lender and an Officer's Certificate with supporting documentation indicating that (A) the Release Parcel is not necessary for the uses of the Remaining Property, including, without limitation, for support, access, driveways, parking, utilities, drainage flows or any other purpose, (after giving effect to any easements therefore reserved over the Release Parcel for the benefit of the Remaining Property) and (B) sufficient parking remains on the Remaining Property to comply with any terms and conditions as the ▇▇▇▇▇▇▇▇ Lease, with any applicable REA and all applicable Legal Requirements, and which is adequate for the proper use and enjoyment of the Remaining Property;
(v) if required to do so in order to satisfy applicable Legal Requirements, Borrower Rating Agencies shall have delivered to Lender evidence that Borrower and other parties to the Release Parcel REA have signed the Release Parcel REA substantially in the form attached hereto as Exhibit B and have complied with all requirements of and obtained all approvals required under the Release Parcel REA;
(vi) Borrower shall have delivered a survey of the Release Parcel and the Remaining Property prepared by a surveyor licensed in the State which conforms to the metes and bounds description attached as Exhibit C-1. Lender shall have the right to use its reasonable discretion to approve any variation to the attached metes and bounds description;
(vii) Borrower shall have delivered to Lender on the date of the release an endorsement to the Title Insurance Policy insuring the Mortgage reflecting the partial release and (A) insuring Lender's interest in any easements created require in connection with the partial such release, (B) extending the effective date of such Title Insurance Policy to the effective date of the partial release, and (C) confirming no change in the priority of the Mortgage on the Remaining Property or in the amount of the insurance or the coverage under such Title Insurance Policy;
(viii) Borrower shall deliver to Lender an Officer's Certificate certifying that the requirements set forth in this Section 7.6 have been satisfied;
(ix) if the Loan is part of a Securitization, Lender shall have received confirmation in writing from the Rating Agencies to the effect that the partial release and the anticipated improvements to be placed on the Release Parcel will not result in a withdrawal, qualification or downgrade of the respective ratings in effect immediately prior to such partial release for the Securities issued in connection with the Securitization that are then outstanding;
(x) if the Loan is part of a Securitization, Borrower shall deliver to Lender an opinion of counsel acceptable to Lender and the Rating Agencies (issued by counsel acceptable to Lender and the Rating Agencies) that the consummation of the transactions contemplated under this Section 7.6 would not constitute a "significant modification" of the Loan under Section 1001 of the IRS Code or otherwise cause a tax to be imposed on a "prohibited transaction" by any REMIC Trust;
(xi) No Event of Default shall exist hereunder;
(xii) Borrower shall deliver to Lender such other certificates, documents or instruments as Lender may reasonably request; and
(xiii) Borrower shall pay all costs and expenses of Lender incurred in connection with the partial release, including Lender's reasonable attorneys' fees and expenses.
(b) In addition to requirements set forth in subsection (a) above (with the exception of the requirement set forth under (a)(iv), and (a)(v) which shall not be applicable), if Borrower desires to obtain a parcel release of the Lien of the Mortgage from the Release Parcel in order to facilitate the addition or expansion of improvements on the Property for retail, office or warehouse purposes, which addition or expansion shall be compatible with the use and operation of the Property as a warehouse/distribution center (the "EXPANSION") Lender shall release the Lien of the Mortgage (and the Related Loan Documents) from such Release Parcel upon satisfaction of the following conditions precedent:
(i) Borrower shall have delivered to Lender preliminary plans and drawings for deliver or take, as the improvements to be built on the Release Parcel together with a certificate from an architect (licensed to practice in the State in which the Property is located and case may be, any other items or actions reasonably acceptable to Lender) certifying that such plans and drawings and the improvements to be constructed pursuant thereto will comply with all Legal Requirements, including that Borrower shall be able to obtain a new or amended certificate of occupancy for the improvements upon completion of the improvements (to the extent that a determination of compliance can be made generally on the basis of preliminary plans and drawings), and Lender shall have approved such plans and drawings, which approval shall be reasonable to an institutional lender and not be unreasonably conditioned, withheld or delayed;
(ii) Borrower shall have delivered to Lender a certificate from an architect or engineer (licensed to practice in the State in which the Property is located and reasonably acceptable to Lender) to the effect that any improvements proposed to be built on the Release Parcel will not adversely affect the structural integrity of the Remaining Property;
(iii) Borrower shall have delivered to Lender an Officer's Certificate as to the proposed use of such Release Parcel, its compatibility with a warehouse/distribution center and its effects on the operation and use of the Remaining Property;
(iv) In place of the metes and bounds description attached as Exhibit C-1, Borrower shall have delivered a survey of the Release Parcel and the Remaining Property prepared by a surveyor licensed in the State which conforms to the metes and bounds description attached as Exhibit C-2. Lender shall have the right to use its reasonable discretion to approve any variation to the attached metes and bounds description;
(v) Borrower shall have delivered to Lender evidence that Borrower and other parties to the Release Parcel REA have signed the Release Parcel REA substantially in the form attached hereto as Exhibit B and have complied with all requirements of and obtained all approvals required under the Release Parcel REA
(vi) The transferee of the Release Parcel shall be responsible for all costs and expenses associated with the design, construction, maintenance and repair of all improvements associated with the Expansion; and
(vii) Borrower Principal shall provide Lender with a completion guaranty for the benefit of Borrower and its successors and/or assigns in a form that is satisfactory to Lender with respect to any demolition, construction, or other work done or proposed to be done on or affecting the Remaining Property in connection with the Expansion;
(c) If Borrower has elected to obtain a partial release of the Release Parcel from the Lien of the Mortgage and the requirements of this Section 7.6 have been satisfied, the Release Parcel shall be released from the Lien of the Mortgage and other related Loan Documents, and Lender shall consent to, and subordinate the Lien of the Mortgage encumbering the Remaining Property to, the Release Parcel REA delivered in connection with such partial release. In connection therewith, Borrower shall submit to Lender, not less than thirty (30) days prior to the Partial Release Date (or such shorter time as is acceptable to Lender in its sole discretion), a partial release of Lien of the Mortgage and other applicable, related Loan Documents for execution requested by Lender and a consent and subordination to the REA for execution by or Lender. Such partial release and consent and subordination shall be in a form appropriate in the jurisdiction in which the Remaining Property and the Release Parcel are located and shall contain standard provisions protecting the rights of a releasing lender with respect to the Remaining Property. In addition, Borrower shall provide all other documentation Lender reasonably requires to be delivered by Borrower in connection with such partial release, together with an Officer's Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such partial release in accordance with the terms of this Agreement. Borrower shall pay all reasonable costs, taxes and expenses associated with the partial release of the Lien of the Mortgage, including Lender's reasonable attorneys' fees. Borrower shall cause title to the Release Parcel to be transferred to and held by a Person other than Borrower. Lender's release of the Release Parcel shall be deemed to mean that Borrower has satisfied or that Lender has waived any of the required conditions set forth within this Section 7.6’s counsel.
Appears in 1 contract
Sources: Loan Agreement (Sabre Corp)
Release Parcel. (a) In Borrower shall have the event Borrower desires right at any time after January 1, 2007 to obtain release a partial release of Specified Expansion Parcel from the Lien of the Mortgage from a (the “Release Parcel”), and Lender shall release the Lien of the Mortgage (and related Loan Documents) from such Release Parcel in connection with the sale of such Release Parcel to a third party that is unaffiliated with Borrower in an arms-length transaction, upon satisfaction of the following conditions precedent:
(ia) Borrower shall provide Lender not less more than thirty (30) days but not less than twenty (20) days notice (or a shorter period of time if permitted by Lender in its sole discretion) specifying a date (which date shall not be earlier than October on or after February 1, 2005 (the "PARTIAL RELEASE DATE"2007) on which the partial release is to occur, provided, however, that Borrower may postpone occur (the “Partial Release Date from time to time as long as the extended date is at least five (5) Business Days after notice of such extensionDate”);
(iib) Borrower shall have delivered deliver to Lender at Borrower's option, an Officer’s Certificate (A) an endorsement as to the Title Insurance Policy (which would be satisfied by an acceptable CLTA 116.7 proposed use of such Release Parcel, its compatibility with, and 123.1 or 123.2 (as applicableits effects on, with parking) endorsements to title), (B) an opinion the operation and use of counsel (from counsel reasonably acceptable to Lender), (C) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State) or (D) a letter from the appropriate Governmental Authority indicating that the Release Parcel has been legally subdivided for zoning lot purposes from the portion of the related Mortgaged Property that would remain encumbered by the Lien of the Mortgage after the release of the Release Parcel (the "REMAINING PROPERTY"“Remaining Property”) and, stating that the operation and use of the Release Parcel shall not compete during the term of the Loan (and for 20 years following the term of the Loan) with the operation and use of the Remaining Property and (B) indicating the Gross Revenues and Operating Expenses for the Remaining Property immediately before and immediately after the proposed release, taking into account the proposed use of the Release Parcel and its effects on income and expenses at the Remaining Property, together with evidence in support of such conclusions with a reasonable conclusion that (i) the Net Operating Income of the Remaining Property will not be less than the Net Operating Income of the combined Release Parcel and Remaining Property immediately prior to the release as a result of the release, and (ii) the value of the Remaining Property will not be less than the value of the combined Release Parcel and Remaining Property on the Closing Date based on the appraisal delivered to Lender on or about the Closing Date;
(c) Borrower shall deliver to Lender an opinion of counsel that meets the Prudent Lender Standard (issued by counsel that meets the Prudent Lender Standard) that the consummation of the transactions contemplated under this Section 2.20 would not constitute a “significant modification” of the Loan under Section 1001 of the IRC or otherwise cause a tax to be imposed on a “prohibited transaction” by any REMIC Trust;
(d) Borrower shall have delivered to Lender evidence that Borrower has complied with all requirements of and obtained all approvals required under any agreement or lease or other arrangement to which Borrower is a party and that the transactions contemplated under this Section 2.20 do not violate any of the provisions of any such agreement or lease or other arrangement;
(e) Borrower shall have delivered to Lender (A) an endorsement to the Title Insurance Policy, (B) an opinion of counsel (which opinion shall be from counsel that meets the Prudent Lender Standard) or (C) a certificate of an architect (which certificate shall be from an architect that meets the Prudent Lender Standard and licensed to practice in the jurisdiction in which the applicable Mortgaged Property is located) indicating that the Release Parcel has been (or promptly will be upon filing of the subdivision plat and related deed which shall occur simultaneously with such release) legally subdivided for zoning lot purposes from the Remaining Property pursuant to a zoning lot subdivision in accordance with applicable Legal Requirements and that the Release Parcel and Remaining Property are each otherwise in compliance with all applicable zoning zoning, building and similar Legal Requirements;
(iiif) Borrower shall have delivered to Lender, at Borrower's option, Lender (A) an endorsement to the Title Insurance Policy, or (B) an opinion of counsel (which opinion shall be from counsel reasonably acceptable to Lender); or (Cthat meets the Prudent Lender Standard) a certificate of an architect (from an architect reasonably acceptable to Lender and licensed to practice in the State), indicating that the Remaining Property separately conforms to and is in material compliance with all applicable Legal Requirements and constitutes (or will constitute at such time as the locality assigns a related separate tax lot number, which shall be a mere formality) a separate tax lot(s), provided, however, that if the Remaining Property and the Release Parcel have not been assessed as separate tax lots on or before the Partial Release Date, then the conditions of this subsection (v) relating to separate tax lot(s) shall be satisfied if (X)
(1) Borrower delivers to Lender an opinion of counsel (from counsel reasonably acceptable to Lender); (2) a letter from the appropriate Governmental Authority, (3) an endorsement to the Title Insurance Policy or (4) any other letter or certification that Lender deems acceptable to conclude that Borrower has performed all actions and obtained all consents necessary in order for the Remaining Property and the Release Parcel to be assessed as separate tax lots and that the only actions required in order for separate tax lots to be created are purely ministerial acts by the applicable taxing authority (such as assigning tax parcel identification numbers) and that separate tax lots will be created in the ordinary course no later than six (6) months after the Partial Release Date, (Y) Borrower delivers to Lender evidence that the transferee of the Release Parcel has agreed to pay its pro rata share of Taxes allocable to the Release Parcel until such parcel is separately assessed (and thereafter is responsible for all Taxes assessed against the Release Parcel) and (Z) the amount of funds held in the Tax and Insurance Account, if any, on account of the Remaining Property shall be determined based upon the Taxes due on both the Remaining Property and the Release Parcel and deposits in such amounts into the Tax and Insurance Account shall continue, until the Remaining Property and the Release Parcel are assessed as separate tax lots and Borrower delivers one of the items described in (A) through (C) above (in which event, Lender shall use only the Taxes due in connection with the Remaining Property as a basis for determining deposits into the Tax Account on account of the Remaining Property);
(ivg) Borrower shall have delivered to Lender a certificate from an architect or engineer (which certificate shall be from an architect or engineer reasonably acceptable to that meets the Prudent Lender Standard and licensed to practice in the State), a Title Policy Endorsement or other evidence reasonably satisfactory to Lender jurisdiction in which the applicable Mortgaged Property is located) and an Officer's ’s Certificate with supporting documentation indicating stating that (A) the Release Parcel is not necessary for the legal uses of the Remaining Property, including, without limitation, for support, access, driveways, parking, utilities, drainage flows or any other purpose, (after giving effect to any easements therefore therefor reserved over the Release Parcel for the benefit of the Remaining Property) and (B) sufficient parking remains any improvements proposed to be built on the Release Parcel will not adversely affect the ability to operate and maintain the Remaining Property (after giving effect to comply with the ▇▇▇▇▇▇▇▇ Lease, with any applicable REA and all applicable Legal Requirements, and which is adequate easements reserved or granted for the proper use benefit of such Remaining Property or the Release Parcel) and enjoyment of will be integrated with the Remaining Property;
(vh) if required to do so in order to satisfy applicable Legal RequirementsTo the extent available, Borrower shall have delivered to Lender evidence that Borrower preliminary plans and other parties drawings for the improvements to be built on the Release Parcel REA have signed together with an architect’s certificate certifying that such plans and drawings and the Release Parcel REA substantially in the form attached hereto as Exhibit B and have complied improvements to be constructed pursuant thereto will comply with all requirements Legal Requirements (to the extent that a determination of compliance can be made generally on the basis of preliminary plans and obtained all approvals required under drawings), and Lender shall have approved such plans and drawings in accordance with the Release Parcel REAPrudent Lender Standard;
(vii) Borrower shall have delivered a legal description and an ALTA survey of the Release Parcel and the Remaining Property prepared by a surveyor licensed which would be standard in commercial lending transactions that for all Release Parcels meets the State which conforms to the metes and bounds description attached as Exhibit C-1. Prudent Lender shall have the right to use its reasonable discretion to approve any variation to the attached metes and bounds descriptionStandard;
(viij) Borrower shall have delivered to Lender on the date of the release an endorsement to the Title Insurance Policy insuring the Mortgage reflecting the partial release and (A) insuring Lender's ’s interest in any easements created in connection with the partial release, (B) extending the effective date of such Title Insurance Policy to the effective date of the partial release, and (C) confirming no change in the priority of the Mortgage on the Remaining Property or in the amount of the insurance or the coverage under such Title Insurance Policy;
(viiik) Borrower shall deliver to Lender an Officer's ’s Certificate certifying that the requirements set forth in this Section 7.6 2.20 have been satisfied;
(ix) if the Loan is part of a Securitization, Lender shall have received confirmation in writing from the Rating Agencies to the effect that the partial release and the anticipated improvements to be placed on the Release Parcel will not result in a withdrawal, qualification or downgrade of the respective ratings in effect immediately prior to such partial release for the Securities issued in connection with the Securitization that are then outstanding;
(x) if the Loan is part of a Securitization, Borrower shall deliver to Lender an opinion of counsel acceptable to Lender and the Rating Agencies (issued by counsel acceptable to Lender and the Rating Agencies) that the consummation of the transactions contemplated under this Section 7.6 would not constitute a "significant modification" of the Loan under Section 1001 of the IRS Code or otherwise cause a tax to be imposed on a "prohibited transaction" by any REMIC Trust;
(xil) No Event of Default shall exist hereunder;
(xiim) Borrower shall deliver to Lender such other certificates, documents or instruments as Lender may reasonably request; andrequest in accordance with the Prudent Lender Standard that meet the Prudent Lender Standard;
(xiiin) Borrower shall pay all reasonable costs and expenses of Lender incurred in connection with the partial release, including Lender's ’s reasonable attorneys' ’ fees and expenses.;
(bo) In addition to requirements set forth in subsection (a) above (with the exception of the requirement set forth under (a)(iv), and (a)(v) which Lender shall not be applicable), if Borrower desires to obtain a parcel release of the Lien of the Mortgage from the Release Parcel in order to facilitate the addition or expansion of improvements on the Property for retail, office or warehouse purposes, which addition or expansion shall be compatible with the use and operation have received an independent MAI appraisal of the Property as a warehouse/distribution center (the "EXPANSION"“Release Parcel Appraisal”) dated no more than sixty (60) days prior to the proposed Partial Release Date by a state-certified appraiser that meets the Prudent Lender shall release the Lien Standard, indicating (A) an appraised value of the Mortgage (Remaining Property after the release both before and the Related Loan Documents) from such Release Parcel upon satisfaction after construction of the following conditions precedent:
(i) Borrower shall have delivered to Lender preliminary plans and drawings for the improvements to be built on the Release Parcel together with a certificate from an architect equal to or greater than the greater of (licensed to practice in y) the State in which the Property is located and reasonably acceptable to Lender) certifying that such plans and drawings and the improvements to be constructed pursuant thereto will comply with all Legal Requirements, including that Borrower shall be able to obtain a new or amended certificate of occupancy for the improvements upon completion value of the improvements entire related Mortgaged Property (to including the extent that a determination of compliance can be made generally Release Parcel) on the basis of preliminary plans and drawings), and Lender shall have approved such plans and drawings, which approval shall be reasonable to an institutional lender and not be unreasonably conditioned, withheld or delayed;
(ii) Borrower shall have Closing Date based on the appraisal delivered to Lender a certificate from an architect on or engineer about the Closing Date or (licensed to practice in z) one hundred percent (100%) of the State in which Allocated Loan Amount for the related Mortgaged Property is located and reasonably acceptable to Lender) to the effect that any improvements proposed to be built on the Closing Date and (B) the value (the “Release Parcel will not adversely affect the structural integrity of the Remaining Property;
(iiiAppraised Value”) Borrower shall have delivered to Lender an Officer's Certificate as to the proposed use of such Release Parcel, its compatibility with a warehouse/distribution center and its effects on the operation and use of the Remaining Property;
(iv) In place of the metes and bounds description attached as Exhibit C-1, Borrower shall have delivered a survey of the Release Parcel and at the Remaining Property prepared by a surveyor licensed in the State which conforms to the metes and bounds description attached as Exhibit C-2. Lender shall have the right to use its reasonable discretion to approve any variation to the attached metes and bounds description;
(v) Borrower shall have delivered to Lender evidence that Borrower and other parties to the Release Parcel REA have signed the Release Parcel REA substantially in the form attached hereto as Exhibit B and have complied with all requirements of and obtained all approvals required under the Release Parcel REA
(vi) The transferee time of the Release Parcel shall be responsible for all costs and expenses associated with the design, construction, maintenance and repair of all improvements associated with the Expansionrelease; and
(viip) Borrower Principal shall provide Lender with a completion guaranty The Debt Service Coverage Ratio at the time of the release for the benefit trailing twelve-month period ending on the last day of Borrower the prior full calendar month will not be less than the Debt Service Coverage Ratio on the Closing Date, and its successors and/or assigns the Debt Service Coverage Test is satisfied. Notwithstanding anything to the contrary contained herein, the parties hereto hereby acknowledge and agree that after all or any portion of the Loan has been included in a form that is satisfactory to Lender Securitization, with respect to any demolition, construction, Lender approval or other work done or proposed to be done on or affecting the Remaining Property similar discretionary rights over any matters contained in connection with the Expansion;
(c) If Borrower has elected to obtain a partial release of the Release Parcel from the Lien of the Mortgage and the requirements of this Section 7.6 have been satisfied2.20 or Section 2.7, the Release Parcel 2.18 or 2.19 (any such matter, a “Lender Approval Item”), such rights shall be released from the Lien of the Mortgage and other related Loan Documents, and construed such that Lender shall only be permitted to withhold its consent to, and subordinate the Lien of the Mortgage encumbering the Remaining Property to, the Release Parcel REA delivered in connection with such partial release. In connection therewith, Borrower shall submit to Lender, not less than thirty (30) days prior to the Partial Release Date (or such shorter time as is acceptable to Lender in its sole discretion), a partial release of Lien of the Mortgage and other applicable, related Loan Documents for execution by Lender and a consent and subordination to the REA for execution by Lender. Such partial release and consent and subordination shall be in a form appropriate in the jurisdiction in which the Remaining Property and the Release Parcel are located and shall contain standard provisions protecting the rights of a releasing lender approval with respect to any Lender Approval Item if the Remaining Property. In addition, Borrower shall provide all other documentation same fails to meet the Prudent Lender reasonably requires to be delivered by Borrower in connection with such partial release, together with an Officer's Certificate certifying that such documentation (i) is in compliance with all Legal Requirements, and (ii) will effect such partial release in accordance with the terms of this Agreement. Borrower shall pay all reasonable costs, taxes and expenses associated with the partial release of the Lien of the Mortgage, including Lender's reasonable attorneys' fees. Borrower shall cause title to the Release Parcel to be transferred to and held by a Person other than Borrower. Lender's release of the Release Parcel shall be deemed to mean that Borrower has satisfied or that Lender has waived any of the required conditions set forth within this Section 7.6Standard.
Appears in 1 contract
Sources: Loan Agreement (Affordable Residential Communities Inc)