Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions. (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to: (i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan; (ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies; (iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and (iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents. (c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information: (i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or (ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)). (d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements. (e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements. (f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 9 contracts
Sources: Loan Agreement (Invitation Homes Inc.), Loan Agreement, Loan Agreement (Invitation Homes Inc.)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (ax) the Lenders, their Affiliates and Approved Funds (“Lender shall have the right (iParties”) to may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”for instance, collateralized loan obligations). At Lender’s election, each note and/or component comprising the Loan and (y) such Securitization may be subject to one or more Secondary Market Transactions.
(b) If requested rated by Lender, the a rating agency. The Loan Parties shall use reasonable efforts reasonably cooperate with the Lender Parties to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of the Loan;
Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counselproviding a certificate (i) agreeing to indemnify the Lender Parties, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers)Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or otherwise reasonably satisfactory necessary in order to Lender and make the Rating Agencies;
(iii) (A) confirm that as statements therein, in light of the closing date of circumstances under which they were made, not misleading, and such indemnity shall survive any Secondary Market Transaction, transfer by the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as Lenders or their successors or assigns of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if agreeing to reimburse the Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party Parties and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, Securitization Parties for any Tenant of the Properties if, legal or other expenses reasonably incurred by such Persons in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in defending the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 9 contracts
Sources: Credit Agreement (Independence Contract Drilling, Inc.), Revolving Credit Agreement (Joe's Jeans Inc.), Credit Agreement (Independence Contract Drilling, Inc.)
Securitization. (a) Lender shall have The Borrower hereby acknowledges that the right (i) to -------------- Lenders and their Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral security for -------------- loans to the Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes S&P or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the "Rating Agencies, applicable Legal Requirements and/or otherwise in "). The --------------- Borrower shall cooperate with the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial Lenders and other information with respect their Affiliates to effect the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Borrower and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan Documents or change or affect in a manner adverse to the Borrower the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "Securitization Parties") for any losses, claims, damages or ---------------------- liabilities (Athe "Liabilities") confirm that to which the Lenders, their Affiliates or such ----------- Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of the Borrower or any Affiliate of the Borrower to the Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans and (ii) agreeing to reimburse the Lenders and their Affiliates for any legal or other expenses reasonably incurred by such Persons in connection with defending the Liabilities. [SIGNATURES BEGIN NEXT PAGE] The parties hereto have caused this Agreement to be duly executed as of the closing date of any Secondary Market Transactionday and year first above written. BORROWER: RMG I, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as LLC By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ -------------------------------------- Name: ------------------------------------ Title: ----------------------------------- ADMINISTRATIVE AGENT: DRAWBRIDGE SPECIAL OPPORTUNITIES FUND LP By: Drawbridge Special Opportunities GP LLC By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ------------------------------------------- ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Chief Operating Officer Address: 1251 Avenue of the closing date of the Secondary Market Transaction Americas ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ LENDER: HIGHBRIDGE/▇▇▇▇▇ SPECIAL OPPORTUNITIES FUND, L.P. By: Highbridge/▇▇▇▇▇ Capital Management, LLC By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ --------------------------------------- ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Managing Principal Address: ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Telecopy: (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty▇▇▇) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut▇▇▇-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.▇▇▇▇
Appears in 5 contracts
Sources: Credit Agreement (Us Energy Corp), Credit Agreement (Crested Corp), Credit Agreement (Crested Corp)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ Guarantor’s New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 5 contracts
Sources: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)
Securitization. (a) Lender shall have Borrower understands that certain of the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests Provided Information may be included in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued disclosure documents in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the ManagerSecuritization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the information set forth on Exhibit C attached heretoSecurities and Exchange Commission pursuant to the Securities Act or the Exchange Act, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects.
(Bb) provide updated budgets Borrower agrees to provide, and other information to cause Mortgage Borrower and Guarantor to provide, in connection with each of (to extent required by investors i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agencies) Agency “term sheets” or presentations relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of and/or the Loan;
) or (ii) provide a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) an updated Insolvency Opinioncertifying that Borrower and Guarantor have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mezzanine Loan,” or similar sections, and all sections relating to Borrower, Mortgage Borrower, Guarantor, Manager, their Affiliates, the Loan, the Loan Documents, the Collateral and the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) updated opinions of Borrower’s certifying that Mortgage Borrower and Guarantors’ New York and Delaware counselGuarantor have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan), substantially the same as those delivered as of the Closing Dateapplicable, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, including without limitation, any the sections entitled “B NoteSpecial Considerations,” purchasers), or otherwise reasonably satisfactory to Lender and/or “Risk Factors,” and the Rating Agencies;
(iii) (A) confirm that as “Certain Legal Aspects of the closing date of any Secondary Market TransactionMortgage Loan,” or similar sections, and all sections relating to Borrower, Mortgage Borrower, Guarantor, Manager, their Affiliates, the representations and warranties as set forth in the Loan Documents are trueLoan, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (C) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or (ii), an “Issuer Person”), and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Issuer Group”), and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or necessary in order to make the statements in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (D) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by LenderLender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower shall not will be required to modify or amend liable in any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, case under clauses (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Loan (other than repayment in full Issuer Group or Underwriter Group by or on the Maturity Date)behalf of Borrower, (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Mortgage Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower, Mortgage Borrower or Guarantor, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower, Mortgage Borrower and Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (C) and (D) above shall be effective whether or not an indemnification certificate described in clauses (A) and (B) above is provided and shall be applicable based on information previously provided by Borrower, Mortgage Borrower and Guarantor or their Affiliates if Borrower, Mortgage Borrower or Guarantor do not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, financial data and/or financial Borrower agrees to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon an untrue statement in the Provided Information or the omission or alleged omission to state in the Provided Information a material fact required to be stated in the Provided Information in order to make the statements with respect to such Tenants meeting in the requirements Provided Information, in light of Item 1112(b)(1the circumstances under which they were made not misleading and (ii) reimburse Lender, the Issuer Group or (2) of Regulation AB, as specified the Underwriter Group for any legal or other expenses reasonably incurred by Lender, but only for so long as such entity the Issuer Group or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act Underwriter Group in connection with defending or relating to investigating the Securitization Securities Liabilities.
(d) Promptly after receipt by an “Exchange Act Filing”) are required indemnified party under this Section 13.5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under applicable Legal Requirements this Section 13.5, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or (ythey) comparable information is required may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 13.5 the indemnifying party shall be responsible for any reasonable legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. The indemnifying party shall not be “available” liable for the expenses of more than one such separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to holders of the Securities under Regulation AB it that are different from or applicable Legal Requirementsadditional to those available to another indemnified party.
(e) If Lender determines that Borrower alone or Borrower In order to provide for just and one or more Affiliates of Borrower collectively, or equitable contribution in circumstances in which the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1indemnity agreements provided for in Section 13.5(c) or (2Section 13.5(d) of Regulation AB, as specified by Lender, but only is or are for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required any reason held to be made under applicable Legal Requirements unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (yor action in respect thereof) comparable information is required referred to therein which would otherwise be “available” indemnifiable under Section 13.5(c) or Section 13.5(d), the indemnifying party shall contribute to holders the amount paid or payable by the indemnified party as a result of such losses, claims, damages or liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities under Regulation AB Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Guarantor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or applicable Legal Requirementsomission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.
(f) If reasonably requested by LenderBorrower shall, Borrower and shall provide Lendercause Guarantor to, within a reasonable period indemnify Lender and its officers, directors, partners, employees, representatives, agents and Affiliates against any Losses to which Lender and each of time following Lender’s request thereforits officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any other indemnification to the Rating Agencies in connection with issuing, monitoring or additional financial statements, maintaining the Securities insofar as the Losses arise out of or financial, statistical are based upon any untrue statement of any material fact in any information provided by or operating information, as Lender shall reasonably determine on behalf of Borrower to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be required pursuant stated therein or necessary in order to Regulation S-K or Regulation S-Xmake the statements in the Covered Rating Agency Information, as applicablein light of the circumstances under which they were made, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as not misleading.
(g) The liabilities and obligations of Borrower and Lender under this Section 13.5 shall otherwise be reasonably requested by Lendersurvive the satisfaction of this Agreement and the satisfaction and discharge of the Debt.
Appears in 5 contracts
Sources: Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Senior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 4 contracts
Sources: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)
Securitization. (a) Lender shall have Borrower understands that certain of the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests Provided Information may be included in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued disclosure documents in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the ManagerSecuritization, including, without limitation, a prospectus, prospectus supplement, offering memorandum or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the information set forth on Exhibit C attached heretoSecurities and Exchange Commission pursuant to the Securities Act or the Exchange Act, or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and service providers relating to the Securitization. In the event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the holder of the Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and complete in all material respects.
(Bb) provide updated budgets Borrower agrees to provide, and other information to cause Senior Mezzanine Borrower to cause Mortgage Borrower and to cause Guarantor to provide, in connection with each of (to extent required by investors i) a preliminary and a final offering memorandum or private placement memorandum or similar document (including any Investor or Rating Agencies) Agency “term sheets” or presentations relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of and/or the Loan;
) or (ii) provide a preliminary and final prospectus or prospectus supplement, as applicable, an indemnification certificate (A) an updated Insolvency Opinioncertifying that Borrower and Guarantor have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Properties and/or the Loan), as applicable, including without limitation, the sections entitled “Special Considerations,” and/or “Risk Factors,” and “Certain Legal Aspects of the Mezzanine Loan,” or similar sections, and all sections relating to Borrower, Mortgage Borrower, Guarantor, Manager, their Affiliates, the Loan, the Loan Documents, the Collateral and the Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (B) updated opinions of Borrower’s certifying that Mortgage Borrower and Guarantors’ New York and Delaware counselGuarantor have carefully examined such memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Property and/or the Loan), substantially the same as those delivered as of the Closing Dateapplicable, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, including without limitation, any the sections entitled “B NoteSpecial Considerations,” purchasers), or otherwise reasonably satisfactory to Lender and/or “Risk Factors,” and the Rating Agencies;
(iii) (A) confirm that as “Certain Legal Aspects of the closing date of any Secondary Market TransactionMortgage Loan,” or similar sections, and all sections relating to Borrower, Mortgage Borrower, Guarantor, Manager, their Affiliates, the representations and warranties as set forth in the Loan Documents are trueLoan, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested Properties, and any risks or special considerations relating thereto, and that, to the best of Borrower’s knowledge, such sections (and any other sections reasonably requested) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (C) indemnifying Lender (and for purposes of this Section 13.5, Lender hereunder shall include its officers and directors) and the Affiliate of Lender that (i) has filed the registration statement, if any, relating to the Securitization and/or (ii) which is acting as issuer, depositor, sponsor and/or a similar capacity with respect to the Securitization (any Person described in (i) or (ii), an “Issuer Person”), and each director and officer of any Issuer Person, and each Person or entity who controls any Issuer Person within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act (collectively, the “Issuer Group”), and each Person which is acting as an underwriter, manager, placement agent, initial purchaser or similar capacity with respect to the Securitization, each of its directors and officers and each Person who controls any such Person within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act (collectively, the “Underwriter Group”) for any Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Losses arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or necessary in order to make the statements in such sections (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or in light of the circumstances under which they were made, not misleading (collectively the “Securities Liabilities”) and (D) agreeing to reimburse Lender, the Issuer Group and the Underwriter Group for any legal or other expenses reasonably incurred by LenderLender and Issuer Group in connection with investigating or defending the Securities Liabilities; provided, however, that Borrower shall not will be required to modify or amend liable in any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, case under clauses (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization above only to the extent that any such Securities Liabilities arise out of or is based upon any such untrue statement or omission made therein in reliance upon and in conformity with information furnished to Lender or any member of the Loan (other than repayment in full Issuer Group or Underwriter Group by or on the Maturity Date)behalf of Borrower, (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Mortgage Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents memorandum or prospectus or other document (including any Investor or Rating Agency “term sheets” or presentations relating to the Collateral, Properties and/or the Loan) or in connection with the underwriting of the Loan, including, without limitation, financial statements of Borrower, Mortgage Borrower or Guarantor, operating statements, rent rolls, environmental site assessment reports and property condition reports with respect to the Properties. This indemnity agreement will be in addition to any liability which Borrower, Mortgage Borrower and Guarantor may otherwise have. Moreover, the indemnification provided for in clauses (C) and (D) above shall be effective whether or not an indemnification certificate described in clauses (A) and (B) above is provided and shall be applicable based on information previously provided by Borrower, Mortgage Borrower and Guarantor or their Affiliates if Borrower, Mortgage Borrower or Guarantor do not provide the indemnification certificate.
(c) In connection with filings under the Exchange Act or any information provided to holders of Securities on an ongoing basis, financial data and/or financial Borrower agrees to indemnify (i) Lender, the Issuer Group and the Underwriter Group for Losses to which Lender, the Issuer Group or the Underwriter Group may become subject insofar as the Securities Liabilities arise out of or are based upon an untrue statement in the Provided Information or the omission or alleged omission to state in the Provided Information a material fact required to be stated in the Provided Information in order to make the statements with respect to such Tenants meeting in the requirements Provided Information, in light of Item 1112(b)(1the circumstances under which they were made not misleading and (ii) reimburse Lender, the Issuer Group or (2) of Regulation AB, as specified the Underwriter Group for any legal or other expenses reasonably incurred by Lender, but only for so long as such entity the Issuer Group or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act Underwriter Group in connection with defending or relating to investigating the Securitization Securities Liabilities.
(d) Promptly after receipt by an “Exchange Act Filing”) are required indemnified party under this Section 13.5 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under applicable Legal Requirements this Section 13.5, notify the indemnifying party in writing of the commencement thereof, but the omission to so notify the indemnifying party will not relieve the indemnifying party from any liability which the indemnifying party may have to any indemnified party hereunder except to the extent that failure to notify causes prejudice to the indemnifying party. In the event that any action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled, jointly with any other indemnifying party, to participate therein and, to the extent that it (or (ythey) comparable information is required may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. After notice from the indemnifying party to such indemnified party under this Section 13.5 the indemnifying party shall be responsible for any reasonable legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there are any legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. The indemnifying party shall not be “available” liable for the expenses of more than one such separate counsel unless an indemnified party shall have reasonably concluded that there may be legal defenses available to holders of the Securities under Regulation AB it that are different from or applicable Legal Requirementsadditional to those available to another indemnified party.
(e) If Lender determines that Borrower alone or Borrower In order to provide for just and one or more Affiliates of Borrower collectively, or equitable contribution in circumstances in which the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1indemnity agreements provided for in Section 13.5(c) or (2Section 13.5(d) of Regulation AB, as specified by Lender, but only is or are for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required any reason held to be made under applicable Legal Requirements unenforceable by an indemnified party in respect of any losses, claims, damages or liabilities (yor action in respect thereof) comparable information is required referred to therein which would otherwise be “available” indemnifiable under Section 13.5(c) or Section 13.5(d), the indemnifying party shall contribute to holders the amount paid or payable by the indemnified party as a result of such losses, claims, damages or liabilities (or action in respect thereof); provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities under Regulation AB Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. In determining the amount of contribution to which the respective parties are entitled, the following factors shall be considered: (i) the indemnified party’s, Borrower’s and Guarantor’s relative knowledge and access to information concerning the matter with respect to which claim was asserted; (ii) the opportunity to correct and prevent any statement or applicable Legal Requirementsomission; and (iii) any other equitable considerations appropriate in the circumstances. Lender and Borrower hereby agree that it would not be equitable if the amount of such contribution were determined by pro rata or per capita allocation.
(f) If reasonably requested by LenderBorrower shall, Borrower and shall provide Lendercause Guarantor to, within a reasonable period indemnify Lender and its officers, directors, partners, employees, representatives, agents and Affiliates against any Losses to which Lender and each of time following Lender’s request thereforits officers, directors, partners, employees, representatives, agents and Affiliates, may become subject in connection with any other indemnification to the Rating Agencies in connection with issuing, monitoring or additional financial statements, maintaining the Securities insofar as the Losses arise out of or financial, statistical are based upon any untrue statement of any material fact in any information provided by or operating information, as Lender shall reasonably determine on behalf of Borrower to the Rating Agencies (the “Covered Rating Agency Information”) or arise out of or are based upon the omission to state a material fact in the Covered Rating Agency Information required to be required pursuant stated therein or necessary in order to Regulation S-K or Regulation S-Xmake the statements in the Covered Rating Agency Information, as applicablein light of the circumstances under which they were made, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as not misleading.
(g) The liabilities and obligations of Borrower and Lender under this Section 13.5 shall otherwise be reasonably requested by Lendersurvive the satisfaction of this Agreement and the satisfaction and discharge of the Debt.
Appears in 4 contracts
Sources: Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc), Junior Mezzanine Loan Agreement (Ashford Hospitality Trust Inc)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor Guarantor, Sponsor, SPE Component Entity and the Manager, including, without limitation, (B) updated budgets relating to the information set forth on Exhibit C attached heretoProperty, and (BC) provide updated budgets appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other information (to extent required by investors or Rating Agencies) relating to due diligence investigations of the Properties Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware or Maryland (as applicable) and federal bankruptcy law relating to limited liability companies, true sale and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest satisfactory in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory form and substance to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute such amendments to the Loan Documents and Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to provide for a non-economic “golden member” and/or to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan Parties’ organizational documents requested into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity (Aexcept as provided in subclause (C) cause above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate coupon of the original Components Note. With respect to Borrower’s cooperation in connection with the aggregate immediately prior foregoing provisions of this Section 11.1, Borrower shall pay its own costs and expenses up $10,000 and Lender shall (a) reimburse Borrower for Borrower’s initial (as opposed to such modificationongoing), (B) cause the outstanding principal balance reasonable, demonstrable, out of all Components in the aggregate immediately after the effective date pocket, third party costs and expenses exceeding $10,000 incurred as a direct result of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, cooperation and (Cb) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documentspay its own costs and expenses.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant ObligorUpon request, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for from time to time such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that as Lender determines to be a Significant Obligor necessary, advisable or appropriate for the two most recent Fiscal Years complying with any applicable legal requirements (including those applicable to Lender or any Servicer (including, without limitation and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as extent applicable, Regulation AB)) within the timeframes necessary, advisable or any amendment, modification or replacement thereto or other Legal Requirements relating appropriate in order to a Securitization or as shall otherwise be reasonably requested by Lendercomply with such legal requirements.
Appears in 4 contracts
Sources: Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc), Loan Agreement (Independence Realty Trust, Inc)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, the Collateral, Pledgor, Borrower, Sponsor Additional Obligor, Sponsor, SPE Component Entity, DDR and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of counsel, which may be relied upon by Lender as to substantive non-consolidation, matters of Delaware and federal bankruptcy law relating to limited liability companies and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, the Collateral, Property Documents, Ground Lease, Condominium Documents, Borrower, Pledgor, Additional Obligor and any other Borrower Properties and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are and can only be made as of a specific date and in the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily requireLoan Documents; and
(iv) execute such amendments to the Loan Documents, the Property Documents, the Ground Lease, the Condominium Documents and Borrower’s, Pledgor’s, Additional Obligor’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) to establish different interest rates and to reallocate the principal balances of the Loan Parties’ organizational documents requested and the Mezzanine Loans amongst each other, (C) further bifurcating the Loan into additional components and/or additional separate notes and/or creating additional senior/subordinate note structure(s), reallocating the Loan amongst the Components, creating and eliminating components of the Loan (including creating a B-Note) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (Ai) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make increase Borrower’s liability or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the decrease Borrower’s rights of Borrower or any Guarantor under the Loan Documents, or (ii) change the interest rate, the stated maturity (except as provided in subclause (C) above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note (except following an Event of Default, prepayment following a Casualty or Condemnation or any principal payments received on the Loan). Provided there exists no Event of Default, from and after the completion of the Spinoff Transaction in accordance with this Agreement, Lender shall only be entitled to complete a Loan Bifurcation or Uncrossing Event if (i) it has provided to Borrower at least thirty (30) days’ prior written notice of such Loan Bifurcation or Uncrossing Event and (ii) Lender has not received written notice from Borrower, within such thirty (30) day period, that Borrower or Sponsor has received written tax advice from a nationally recognized accounting firm reasonably acceptable to Lender that such Loan Bifurcation or Uncrossing Event “would more likely than not” (x) result in material cancellation of indebtedness income for tax purposes for Borrower, Sponsor or any Taxable REIT Subsidiary or (y) cause a material risk that Sponsor would fail to qualify as a REIT, provided that Borrower shall provide to Lender a copy of such written tax advice. Notwithstanding the foregoing, (I) Lender may complete a Loan Bifurcation or Uncrossing Event in its sole discretion and without notice to or consent of Borrower at any time prior to May 1, 2018 and (II) nothing herein shall prohibit or restrict any Lender from selling, participating or otherwise transferring its Note (or any portion thereof or interest therein).
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties Property alone or the Properties Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB, if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, net operating income for or (ii) the Properties and the Related Properties for the most recent Fiscal Year and interim period as financial statements required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k1112(b)(2) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender . Such financial data or financial statements meeting the requirements of Item 1112(b)(1shall be furnished to Lender (A) or within ten (210) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Business Days after notice from Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and on an ongoing basis(C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data and/or or financial statements pursuant to clauses (B) or (C) of this sentence with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only any period for so long as such entity or entities are which a Significant Obligor and either (x) filings filing pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) is not required. If requested by Lender, Borrower shall furnish to Lender financial data and/or financial statements for any tenant of the Property that is available to Borrower (or Borrower if permitted to request) and which Borrower has the right to share with third parties if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(d) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section shall be audited by independent accountants of Borrower acceptable to Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be made provided. All financial data and statements (audited or unaudited) provided by Borrower under applicable Legal Requirements or this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirementsd).
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request thereforpromptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, AB or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by LenderLender if the same are available (or under the control of) Borrower, any other Borrower Party and/or their respective Affiliates.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of this Section, Lender may request, and Borrower shall promptly provide (and shall cause each other Borrower Party to provide), such other financial data and financial statements as Lender reasonably determines to be necessary or appropriate for such compliance.
Appears in 3 contracts
Sources: Loan Agreement (Retail Value Inc.), Loan Agreement (Retail Value Inc.), Loan Agreement (DDR Corp)
Securitization. (a) Lender shall have The Loan Parties hereby acknowledge that the right (i) to Lenders and their Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the "Rating Agencies"). The Loan Parties shall use reasonable efforts cooperate with the Lenders and their Affiliates to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Loan Parties and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Loan Parties under the Loan Documents or change or affect in a manner adverse to the Loan Parties the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "Securitization Parties") for any losses, claims, damages or liabilities (Athe "Liabilities") confirm that to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause in any writing delivered by or on behalf of any Loan Party to the initial weighted average Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Lenders or their successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower Loans and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 3 contracts
Sources: Financing Agreement (Allied Holdings Inc), Financing Agreement (Oglebay Norton Co /Ohio/), Financing Agreement (Solutia Inc)
Securitization. (a) Lender shall have Borrower understands that certain of the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests Provided Information may be included in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued disclosure documents in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the ManagerSecuritization, including, without limitation, a prospectus, prospectus supplement or private placement memorandum (each, a “Disclosure Document”) and may also be included in filings with the information set forth on Exhibit C attached heretoSecurities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Securities Act”), or the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or provided or made available to investors or prospective investors in the Securities, the Rating Agencies, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) service providers relating to the Properties (Securitization. In the “Updated Information”) which were obtained in connection event that the Disclosure Document is required to be revised prior to the sale of all Securities, Borrower will cooperate with the origination holder of the Loan;
(ii) provide (A) an updated Insolvency Opinion, Note in updating the Disclosure Document by providing all current information necessary to keep the Disclosure Document accurate and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except respects, and otherwise to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely enable Lender to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documentscomply with applicable laws regarding disclosure.
(cb) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise The Indemnifying Persons agree to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lenderprovide, in connection with the preparation of Securitization, an indemnification agreement certifying that (i) the Indemnifying Persons have carefully examined the Disclosure Documents, (ii) such sections and such other information in the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act extent such information relates to or includes any Provided Information or any information regarding the Properties, Borrower, Manager and/or the Loan) (collectively with the Provided Information, the “Covered Disclosure Information”) do not contain any untrue statement of a material fact or omit to state a material fact necessary in connection with or relating order to make the statements made, in the light of the circumstances under which they were made, not misleading, and (iii) jointly and severally indemnifying Lender and any Affiliate of Lender involved in the Securitization (an collectively, the “Exchange Act FilingIndemnified Persons”), for any losses, claims, damages, liabilities, costs or expenses (including without limitation legal fees and expenses for enforcement of these obligations (collectively, the “Liabilities”) to which any such Indemnified Person may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in the Covered Disclosure Information or arise out of or are based upon the omission or alleged omission to state in the Covered Disclosure Information a material fact required to be made under applicable Legal Requirements stated therein or (y) comparable information is required necessary in order to otherwise be “available” to holders make the statements in the Covered Disclosure Information, in light of the Securities circumstances under Regulation AB or applicable Legal Requirementswhich they were made, not misleading.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 3 contracts
Sources: Loan Agreement (Highlands REIT, Inc.), Loan Agreement (Highlands REIT, Inc.), Loan Agreement (Inland American Real Estate Trust, Inc.)
Securitization. (a) Lender shall have The Borrower hereby acknowledges that the right (i) to Lenders and any of their Affiliates may sell or otherwise transfer securitize the Loan Obligations (a "Securitization") through the pledge of the Obligations as collateral security for loans to such Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Obligations or the issuance of direct or indirect interests in the LoanObligations, which loans to such Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the "Rating Agencies, applicable Legal Requirements and/or otherwise in "). The Borrower shall cooperate reasonably with such Lenders and their Affiliates to effect the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, the information set forth on Exhibit C attached hereto, and by (Ba) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party amending this Agreement and the other conditions set forth in Rule 3-14 of Regulation S-X have been metLoan Documents, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Furtherand executing such additional documents, if as reasonably requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to LenderLenders, in connection with the preparation Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrower, (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations (including administrative duties or reporting obligations), of the Disclosure Borrower under the Credit Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity change or entities are affect in a Significant Obligor and either (x) filings pursuant manner adverse to the Exchange Act in connection with or relating to Borrower the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders financial terms of the Securities under Regulation AB or applicable Legal Requirements.
Obligations, and (eb) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, providing such information as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise may be reasonably requested by Lendersuch Lenders, in connection with the rating of the Obligations or the Securitization, (c) providing in connection with any rating of the Obligations, a certificate (i) agreeing to indemnify such Lenders and any of their Affiliates, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization (collectively, the "Securitization Parties") for any losses, claims, damages or liabilities (the "Liabilities") to which such Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Credit Document or in any writing delivered by or on behalf of the Borrower and its respective Affiliates to the Agent or one or more Lenders in connection with any Credit Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and such indemnity shall survive any transfer by such Lenders or their successors or assigns of the Obligations, and (ii) agreeing to reimburse such Lenders and any of their Affiliates and other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Liabilities; and (d) providing such information regarding the Borrower, the Guarantors, the Collateral and other property, assets and business of the Borrower and the Guarantors (including appraisals and valuations) as may be reasonably requested by such Lenders or their successors or assignees.
Appears in 3 contracts
Sources: Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc)
Securitization. (a) Lender shall have The Loan Parties hereby acknowledge that the right (i) to Lenders and their Affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, notes which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by ▇▇▇▇▇’▇, Standard & Poor’s or one or more other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as rating agencies (the “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the The Loan Parties shall use reasonable efforts cooperate with the Lenders and their Affiliates to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Loan Parties and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Loan Parties under the Loan Documents or change or affect in a manner adverse to the Loan Parties the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (Athe “Liabilities”) confirm that to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause in any writing delivered by or on behalf of any Loan Party to the initial weighted average Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Lenders or their successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower Loans and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 3 contracts
Sources: Financing Agreement (Oglebay Norton Co /Ohio/), Financing Agreement (Gordon Biersch Brewery Restaurant Group, Inc.), Credit Agreement (Imperial Petroleum Inc)
Securitization. (a) Each Borrower hereby acknowledges that the Lender shall have the right (i) to and any of its Affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Loans as collateral security for loans to the Lender or its Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, notes which loans to the Lender or its Affiliate or direct or indirect interests will be rated by ▇▇▇▇▇’▇, Standard & Poor’s or one or more other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as rating agencies (the “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising Each Borrower shall cooperate with the Loan may be subject Lender and its Affiliates to one or more Secondary Market Transactions.
(b) If requested by Lender, effect the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lender in connection with the origination of the Loan;
Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on any Borrower and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of any Borrower under the Loan Documents or change or affect in a manner adverse to any Borrower the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lender in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lender and any of its Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (Athe “Liabilities”) confirm that to which the Lender, its Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause in any writing delivered by or on behalf of any Borrower and its Affiliates to the initial weighted average Lender in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in circumstances under which they were made, not misleading and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Lender or its successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower Loans and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if agreeing to reimburse the Lender reasonably determines that the principal amount and any of the Loan together with its Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 2 contracts
Sources: Financing Agreement (Enherent Corp), Financing Agreement (Enherent Corp)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization (including a collateralized debt obligation (CDO) securitization). (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace by prospective investors, transferees, lenders and/or participants or by the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide or cause Mortgage Borrower and/or Mezzanine A Borrower to (A) provide updated financial and other information with respect to the Properties, the Applicable Collateral, the business operated at the Properties, Borrower, Sponsor Mortgage Borrower, Mezzanine A Borrower, Mezzanine C Borrower, Guarantor, Sponsor, each Applicable SPE Component Entity and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property, which (in each case) are available or reasonably obtainable using systems of Borrower and Manager that are currently in place (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies, (B) cooperate with Lender in obtaining updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Properties and (C) use commercially reasonable efforts to obtain revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially which may be relied upon by Lender and the same Rating Agencies, as those delivered as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies with respect to Borrower, Mortgage Borrower, any Mezzanine Borrower and the Applicable SPE Component Entities and due execution and enforceability of the Closing DateLoan Documents, customary in Secondary Market Transactions or required by the Rating Agencies, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and, in each case consistent with the facts covered by such representations and warranties as they exist on the date thereof;
(iv) execute such amendments to the Loan Documents, the Mezzanine Loan Documents, and the Mortgage Loan Documents and Borrower’s, Mezzanine Borrower’s, Mortgage Borrower’s and any Operating Lessee Pledgor’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies in order to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) further bifurcating the Loan Parties’ organizational documents requested into two or more additional components, re-allocating the Loan among existing components or existing Notes, reducing the number of components of the Loan or of any Note and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts of the Loan, the Note and any Mezzanine Loan, including, without limitation, re-allocating the portions of each of the Loan and/or any Mezzanine Loan that accrue at a fixed rate of interest and that accrue at a floating rate of interest and/or re-allocating the portion of the Loan and any Mezzanine Loan which is subject to open prepayment in accordance with the terms and conditions of the Loan Documents (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that (I) Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document, Mortgage Loan Document or Mezzanine Loan Document if such modification or amendment would (A) cause the initial weighted average of change any economic or non-economic term, including the interest rates for all Components in rate or the aggregate immediately after the effective date stated maturity (except as would not have an adverse effect on Borrower, Guarantor and/or any of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (their Affiliates other than repayment in full on the Maturity Date), (Eto a de minimus extent) change any Stated Maturity Date or (F) otherwise increase the obligations (other than to a de minimus extent) or reduce decrease the rights of Borrower or any Guarantor under Affiliates pursuant to the Loan Documents, Mortgage Loan Documents or Mezzanine Loan Documents (other than to a de minimus extent), except in connection with a Loan Bifurcation which may result in varying interest rates but will have the same weighted average coupon of the original Note (except following an Event of Default) and (II) none of Borrower, Mortgage Borrower, any Mezzanine Borrower, any Operating Lessee Pledgor nor any SPE Component Entity shall be required to modify its organizational structure or make any other modification, if such modification would cause it or any of its Affiliates or direct or indirect owners to incur any additional tax liability or suffer other adverse consequences (other than to a de minimus extent). Borrower acknowledges and agrees that the execution of any Loan Bifurcation in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents; and
(v) prior to the Securitization of the entire Loan, reallocate the Allocated Loan Amounts in Lender’s reasonable discretion and reasonably approved by Borrower, such reasonable approval not to be unreasonably withheld, conditioned or delayed. Notwithstanding anything herein to the contrary, with respect to any compliance by any Borrower Party with requests made pursuant to this Section 11.1 or any of Sections 11.2, 11.8 and 11.9 with respect to any Secondary Market Transaction, each Borrower Party shall pay their own costs and expenses incurred prior to the consummation of the corresponding Secondary Market Transaction in connection therewith (including, without limitation, attorneys’ fees and expenses) and Lender shall pay its own costs and expenses in connection therewith (including, without limitation, attorneys’ fees and expenses); provided that Lender shall reimburse the Borrower Parties for any reasonable, out-of-pocket costs incurred by the Borrower Parties prior to the consummation of the corresponding Secondary Market Transaction in Borrower’s complying with such requests (exclusive of the Borrower Parties’ legal fees, costs and disbursements, which shall be paid by the Borrower Parties and exclusive of all of Borrower’s costs and expenses with respect to Section 11.1(b)(v) hereof, which shall be paid by the Borrower Parties).
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon reasonable request the following financial information:
(i) if If Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (), but be less than twenty percent (20%)) , of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if If Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X))AB.
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data In the event all or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant a portion of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be Loan is included in a securitization involving a registered public offering of Securities pursuant to the Securitization such Securities Act, and if Lender determines that such Tenant Borrower alone or group Borrower and one or more Affiliates of Affiliated Tenants would constitute Borrower collectively, or the Properties alone or the Properties and the Related Properties, collectively, are a Significant Obligor. , then Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, selected financial data and/or or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected Any financial data or financial statements meeting required pursuant to Section 11.1(d) above shall be furnished to Lender (1) not later than forty-one (41) days after the requirements end of Item 1112(b)(1) or the fiscal quarter of Borrower and (2) not later than eighty-five (85) days after the end of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders each fiscal year of the Securities under Regulation AB or applicable Legal RequirementsBorrower.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time promptly following Lender’s request therefor, and in any event within the time periods required to comply with Regulation AB or other Legal Requirements relating to a Securitization (but no earlier than five (5) Business Days following notice from Lender), with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization.
(g) All financial data and statements provided by Borrower hereunder in connection with a Securitization shall meet (and shall be accompanied by such auditors’ reports or consents and such certificates as shall otherwise may be reasonably requested necessary to comply with) the requirements of Regulation AB and other Legal Requirements, in each case to the extent applicable and as specified by Lender.
(h) Provided that no Event of Default has occurred and is continuing, Lender agrees that it shall not sell any portion of the Loan or participation interest therein (excluding any note, certificate or other instrument issued in a Securitization) to an Excluded Entity in connection with the initial sale thereof. For the avoidance of doubt, Borrower’s rights under this Section do not apply to any sale of Securities or similar certificated instruments, and apply solely to the initial sale of a note, participation or mezzanine interest and not any subsequent resale thereof. Lender shall be entitled to rely on a representation from a transferee that such transferee is not an Excluded Entity without any need for independent investigation.
(i) Notwithstanding anything to the contrary contained herein, the provisions regarding the delivery of REMIC Opinions and satisfaction of REMIC Requirements will only apply if all or any portion of the Loan has been securitized.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.), Mezzanine Loan Agreement (Northstar Realty Finance Corp.)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use Borrower shall, at Lender’s reasonable efforts to provide information in the possession or control of Borrower or its Affiliatescost and expense, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor Guarantor, Sponsor, SPE Component Entity and Manager (if any), (B) updated budgets relating to the Manager, including, without limitation, the information set forth on Exhibit C attached heretoProperty, and (BC) provide updated budgets appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other information (to extent required by investors or Rating Agencies) relating to due diligence investigations of the Properties Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware or Maryland (as applicable) and federal bankruptcy law relating to limited liability companies, true sale and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest satisfactory in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory form and substance to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute such amendments to the Loan Documents and Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan Parties’ organizational documents requested into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment (1) would change the interest rate, the stated maturity (Aexcept as provided in subclause (C) cause above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate coupon of the original Components in the aggregate immediately prior to such modificationNote, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F2) otherwise materially increase the Borrower’s obligations or reduce the decrease Borrower’s rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant ObligorUpon request, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for from time to time such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that as Lender determines to be a Significant Obligor necessary, advisable or appropriate for the two most recent Fiscal Years complying with any applicable legal requirements (including those applicable to Lender or any Servicer (including, without limitation and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as extent applicable, Regulation AB)) within the timeframes necessary, advisable or any amendment, modification or replacement thereto or other Legal Requirements relating appropriate in order to a Securitization or as shall otherwise be reasonably requested by Lendercomply with such legal requirements.
Appears in 2 contracts
Sources: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization (including a collateralized debt obligation (CDO) securitization). (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace by prospective investors, transferees, lenders and/or participants or by the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide or cause Mortgage Borrower to (A) provide updated financial and other information with respect to the Properties, the Collateral, the business operated at the Properties, Borrower, Sponsor Mortgage Borrower, Mezzanine B Borrower, Mezzanine C Borrower, Guarantor, Sponsor, SPE Component Entity (as defined herein and in the Mortgage Loan Agreement) and Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property, which (in each case) are available or reasonably obtainable using systems of Borrower and Manager that are currently in place (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies, (B) cooperate with Lender in obtaining updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Properties and (C) use commercially reasonable efforts to obtain revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially which may be relied upon by Lender and the same Rating Agencies, as those delivered to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies with respect to Borrower, Mortgage Borrower, any Mezzanine Borrower and SPE Component Entities (as defined herein and in the Mortgage Loan Agreement) and due execution and enforceability of the Closing DateLoan Documents, customary in Secondary Market Transactions or required by the Rating Agencies, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and, in each case consistent with the facts covered by such representations and warranties as they exist on the date thereof;
(iv) execute such amendments to the Loan Documents, the Mezzanine Loan Documents, and the Mortgage Loan Documents and Borrower’s, Mezzanine Borrower’s, Mortgage Borrower’s and any Operating Lessee Pledgor’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies in order to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) further bifurcating the Loan Parties’ organizational documents requested into two or more additional components, re-allocating the Loan among existing components or existing Notes, reducing the number of components of the Loan or of any Note and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts of the Loan, the Note and any Mezzanine Loan, including, without limitation, re-allocating the portions of each of the Loan and/or any Mezzanine Loan that accrue at a fixed rate of interest and that accrue at a floating rate of interest and/or re-allocating the portion of the Loan and any Mezzanine Loan which is subject to open prepayment in accordance with the terms and conditions of the Loan Documents (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that (I) Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document, Mortgage Loan Document or Mezzanine Loan Document if such modification or amendment would (A) cause the initial weighted average of change any economic or non-economic term, including the interest rates for all Components in rate or the aggregate immediately after the effective date stated maturity (except as would not have an adverse effect on Borrower, Guarantor and/or any of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (their Affiliates other than repayment in full on the Maturity Date), (Eto a de minimus extent) change any Stated Maturity Date or (F) otherwise increase the obligations (other than to a de minimus extent) or reduce decrease the rights of Borrower or any Guarantor under Affiliates pursuant to the Loan Documents, Mortgage Loan Documents or Mezzanine Loan Documents (other than to a de minimus extent), except in connection with a Loan Bifurcation which may result in varying interest rates but will have the same weighted average coupon of the original Note (except following an Event of Default) and (II) none of Borrower, Mortgage Borrower, any Mezzanine Borrower, any Operating Lessee Pledgor nor any SPE Component Entity shall be required to modify its organizational structure or make any other modification, if such modification would cause it or any of its Affiliates or direct or indirect owners to incur any additional tax liability or suffer other adverse consequences (other than to a de minimus extent). Borrower acknowledges and agrees that the execution of any Loan Bifurcation in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents; and
(v) prior to the Securitization of the entire Loan, reallocate the Allocated Loan Amounts in Lender’s reasonable discretion and reasonably approved by Borrower, such reasonable approval not to be unreasonably withheld, conditioned or delayed. Notwithstanding anything herein to the contrary, with respect to any compliance by any Borrower Party with requests made pursuant to this Section 11.1 or any of Sections 11.2, 11.8 and 11.9 with respect to any Secondary Market Transaction, each Borrower Party shall pay their own costs and expenses incurred prior to the consummation of the corresponding Secondary Market Transaction in connection therewith (including, without limitation, attorneys’ fees and expenses) and Lender shall pay its own costs and expenses in connection therewith (including, without limitation, attorneys’ fees and expenses); provided that Lender shall reimburse the Borrower Parties for any reasonable, out-of-pocket costs incurred by the Borrower Parties prior to the consummation of the corresponding Secondary Market Transaction in Borrower’s complying with such requests (exclusive of the Borrower Parties’ legal fees, costs and disbursements, which shall be paid by the Borrower Parties and exclusive of all of Borrower’s costs and expenses with respect to Section 11.1(b)(v) hereof, which shall be paid by the Borrower Parties).
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon reasonable request the following financial information:
(i) if If Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (), but be less than twenty percent (20%)) , of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if If Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X))AB.
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data In the event all or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant a portion of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be Loan is included in a securitization involving a registered public offering of Securities pursuant to the Securitization such Securities Act, and if Lender determines that such Tenant Borrower alone or group Borrower and one or more Affiliates of Affiliated Tenants would constitute Borrower collectively, or the Properties alone or the Properties and the Related Properties, collectively, are a Significant Obligor. , then Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, selected financial data and/or or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected Any financial data or financial statements meeting required pursuant to Section 11.1(d) above shall be furnished to Lender (1) not later than forty-one (41) days after the requirements end of Item 1112(b)(1) or the fiscal quarter of Borrower and (2) not later than eighty-five (85) days after the end of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders each fiscal year of the Securities under Regulation AB or applicable Legal RequirementsBorrower.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time promptly following Lender’s request therefor, and in any event within the time periods required to comply with Regulation AB or other Legal Requirements relating to a Securitization (but no earlier than five (5) Business Days following notice from Lender), with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization.
(g) All financial data and statements provided by Borrower hereunder in connection with a Securitization shall meet (and shall be accompanied by such auditors’ reports or consents and such certificates as shall otherwise may be reasonably requested necessary to comply with) the requirements of Regulation AB and other Legal Requirements, in each case to the extent applicable and as specified by Lender.
(h) Provided that no Event of Default has occurred and is continuing, Lender agrees that it shall not sell any portion of the Loan or participation interest therein (excluding any note, certificate or other instrument issued in a Securitization) to an Excluded Entity in connection with the initial sale thereof. For the avoidance of doubt, Borrower’s rights under this Section do not apply to any sale of Securities or similar certificated instruments, and apply solely to the initial sale of a note, participation or mezzanine interest and not any subsequent resale thereof. Lender shall be entitled to rely on a representation from a transferee that such transferee is not an Excluded Entity without any need for independent investigation.
(i) Notwithstanding anything to the contrary contained herein, the provisions regarding the delivery of REMIC Opinions and satisfaction of REMIC Requirements will only apply if all or any portion of the Loan has been securitized.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Securitization. In addition to any other assignment permitted pursuant to this Article XII Credit Parties hereby acknowledge that (ax) any Lender shall have the right (i) to Party may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”) through the pledge of the Loans as collateral security for loans to any other Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, for instance, collateralized loan obligations), and (y) such Securitization may be rated by a Rating Agency. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”)Securitization shall be at the relevant Lender Parties’ sole cost and expense. At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan The Credit Parties shall use reasonable efforts reasonably cooperate with the Lender Parties to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization; provided that (i) any such amendment or additional documentation does not impose additional costs on the Loan;
Borrowers and (ii) provide any such amendment or additional documentation does not adversely affect the rights, or increase the obligations, of any of the Borrowers under the Loan Documents or change or affect in a manner adverse to the Borrowers the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders or Rating Agencies in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counselproviding a certificate (i) agreeing to indemnify the Lender Parties, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any damages or liabilities to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Credit Party to the Lender Parties in connection with any Secondary Market Transaction Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading (including, without limitation, any the “B Note” purchasersSecuritization Liabilities”), and such indemnity shall survive any transfer by the Lenders or otherwise reasonably satisfactory their successors or assigns of the Loans, and (ii) agreeing to reimburse the Lender Parties and the Rating Agencies;
other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in defending the Securitization Liabilities (iii) (A) confirm that as of but not for expenses incurred in connection with the closing date of any Secondary Market TransactionSecuritization), the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any a Securitization Liabilities result solely from such representations and warranties are and can only be made Securitization Party’s gross negligence or willful misconduct (as finally determined by a court of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)competent jurisdiction).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 2 contracts
Sources: Loan Agreement (Hemisphere Media Group, Inc.), Loan Agreement (Hemisphere Media Group, Inc.)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, Loan or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including at Borrower’s cost and expense, including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor Guarantor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, matters of Delaware (or Maryland, as applicable) (including authority-to-file insolvency) and federal bankruptcy law relating to limited liability companies or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property and Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest satisfactory in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory form and substance to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan Parties’ organizational documents requested by Lenderinto two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document or organizational document if such modification or amendment would (A) cause change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate coupon of the original Components in Note or any other material economic or non-economic term of the aggregate immediately prior to such modification, Loan; (B) cause modify or amend any other material economic or material non-economic term of the outstanding principal balance of all Components in Loan or the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, Loan Documents; or (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise materially increase the Borrower’s obligations or reduce the rights of Borrower or any Guarantor and liabilities under the Loan Documents.
(c) If, at the time a one or more Disclosure Document is Documents are being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties Property alone or the Properties Property and Related Properties collectively, will be a Significant ObligorObligor for purposes of such Securitization, Borrower shall furnish (or cause to be furnished) to Lender upon request the following financial information:
(i) the selected financial data or, if applicable, net operating income, described in Item 1112(b)(1) of Regulation AB, if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan (or portion of the Loan included in such Securitization) and any Related Loans are included in a Securitization does, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in such Securitization or (ii) the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under financial statements described in Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k1112(b)(2) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines expects that the principal amount of the Loan (or portion of the Loan included in such Securitization) together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such Securitization and at any time during which the Loan (or apportion of the Loan included in such Securitization) and any Related Loans are included in a Securitization does, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, the . Such financial data or financial statements required under Item 1112(b)(2shall be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of Regulation AB (which includes, but may not be limited to, a balance sheet this sentence with respect to the entity that Lender determines to be a Significant Obligor any period for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties which an Exchange Act Filing is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if required. If requested by Lender, and to the extent not prohibited by any applicable lease, other agreement or order, Borrower shall, promptly upon Lender’s request, shall furnish to Lender financial data or and/or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant tenant of any of the Properties if, in connection with a Securitization, Lender reasonably determines expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant tenant or group of Affiliated Tenants affiliated tenants, a concentration within all of the mortgage loans included or expected to be included included, as applicable, in the Securitization such that such Tenant tenant or group of Affiliated Tenants affiliated tenants would constitute a Significant Obligor.
(d) All financial data and financial statements provided by Borrower hereunder pursuant to Section 11.1(c) and (d) hereof shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in Section 11.1(c) above shall be audited by independent accountants of Borrower (which accountants shall furnish be acceptable to Lender) in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in connection with any Disclosure Document and any Exchange Act Filing and to the preparation use of the Disclosure Documents name of such independent accountants and on an ongoing basis, financial data and/or financial statements with respect the reference to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, independent accountants as specified by Lender, but only for so long as such entity or entities are a Significant Obligor “experts” in any Disclosure Document and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) , all of which shall be provided at the same time as the related financial statements are required to be made provided. All financial data and financial statements (audited or unaudited) provided by Borrower under applicable Legal Requirements or (ySection 11.1(c) comparable information is required to otherwise shall be “available” to holders accompanied by an Officer’s Certificate stating that such financial statements meet the requirements set forth in the first sentence of the Securities under Regulation AB or applicable Legal Requirementsthis Section 11.1(d).
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request thereforpromptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, AB or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements and (if applicable) related accountants’ reports and consents required in order to comply with Regulation AB or any amendment, modification or replacement of Regulation AB or with other legal requirements are other than as provided herein, then notwithstanding the provisions of Section 11.1(c) and (d), Lender may request, and Borrower shall promptly provide, such other financial statements and (if applicable) related accountants’ reports and consents as Lender determines to be necessary or appropriate for such compliance.
Appears in 2 contracts
Sources: Loan Agreement, Loan Agreement (Consolidated Tomoka Land Co)
Securitization. (a) Borrower acknowledges and agrees that Lender shall have the absolute and unconditional right (i) at any time after the date hereof and at any time during the term of the Loan without requiring any consent or approval from Borrower, any Loan Party or any other person guaranteeing the payment of the Debt or any other Person associated with or connected with the Loan or the Collateral to sell sell, assign, pledge, hypothecate or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection whole or in part, or to place one or more participation interests therein in one or more separate transactions, or to effect a syndication or securitization of the Loan in one or more transactions (a “Securitization”), in each case to or with any Secondary Market Transaction such Persons (including, without limitation, domestic or foreign banks, insurance companies, pension funds, trusts, other institutional lenders or investors, natural persons, grantor trusts, owner trusts, special purpose corporations, REMICs, FASITs, real estate investment trusts or other similar or comparable investment vehicles) (collectively or individually, “Investor”) and on such terms and conditions as Lender shall deem to be appropriate in the exercise of its sole and absolute discretion. In connection with any “B Note” purchaserssuch sale, assignment, participation, syndication or securitization, Lender shall have the absolute and unconditional right without obtaining the prior consent or approval of any Loan Party or any other Person guaranteeing the payment of the Debt or any other Person associated or connected with the Loan or the Collateral (including the Property Owners) to disclose, deliver and to share with any prospective purchaser of the Loan or of any securities or of any participation or other interest therein (including any such interest to be acquired in connection with a syndication or securitization of the Loan), or otherwise reasonably satisfactory with any prospective Rating Agency, or their respective counsel or representatives, such information (financial or otherwise), documents and instruments pertaining to the Loan or any other person, party or entity associated or connected with the Loan or the Collateral (collectively, the “Disclosure Material and Information”) as Lender shall deem to be appropriate in the exercise of its sole and absolute discretion. Borrower shall cooperate, and shall cause each Loan Party and each other Person, associated or connected with the Rating Agencies;
(iii) (A) confirm that as Loan or the Collateral to cooperate, in all reasonable respects with Lender in connection with any sale, assignment, participation, syndication or securitization of the closing date Loan or any interest therein by Lender pursuant to the provisions of this paragraph but at no out-of-pocket cost to Borrower. Without in any manner implying the necessity therefor, Borrower grants to Lender, and shall cause each Loan Party and each other Person associated or connected with the Loan or the Collateral to specifically grant to Lender, the right to distribute any and all of the Disclosure Material and Information in connection with any sale, assignment, participation, syndication or securitization of the Loan or of any Secondary Market Transactioninterest therein by Lender pursuant to the provisions of this paragraph. Borrower shall execute and deliver, and shall cause each Loan Party and each other Person associated or connected with the representations Loan or the Collateral to execute and warranties deliver, such documents and instruments as may be reasonably necessary to (a) split the Loan into two or more loans evidenced by and pursuant to separate sets of notes and other related loan documents, or (b) to modify the terms and provisions of the Loan Documents, in each case to the full extent required by Lender to facilitate any sale, assignment, pledging, hypothecation, participation, syndication or securitization of the Loan or any interest therein by Lender pursuant to the provisions of this paragraph, it being agreed that (i) any such splitting or modification of the Loan will not materially adversely affect or diminish the rights of any Loan Party as presently set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall will not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the monetary obligations and liabilities or reduce materially increase the rights non-monetary obligations of Borrower or any Guarantor Loan Party under the Loan Documents.
, and (cii) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is split, the retained interest of Lender, if any, in the Loan shall be allocated to or among one or more of such separate loans in a manner specified by Lender in its sole and absolute discretion. If Borrower shall default in the performance of its obligation as set forth in this paragraph, and if such default shall not treated as a non-recourse loan be remedied by Borrower within fifteen (15) days after notice by Lender, Lender shall have the absolute and unconditional right in its sole and absolute discretion to declare such default an Event of Default under Instruction 3 for Item 1101(k) this Agreement. Lender shall endeavor to provide notice to Borrower of Regulation ABany such assignment, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB)sale, or
(ii) if Lender reasonably determines that the principal amount participation, syndication or securitization of the Loan together with in a reasonably timely manner, but any Related Loans, as failure by Lender to provide notice to Borrower shall not give rise to any claim or defense on the part of any of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homesLoan Parties, or other properties that would be deemed to constitute a business and not real estate limit the rights of Lender under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, this Section 15.19 or the Properties alone Loan Documents. Until otherwise directed in writing by Lender following the occurrence of any such assignment, sale, participation, syndication or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lendersecuritization, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, continue to deliver all payments and deposits as Lender shall reasonably determine required prior to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lendersuch occurrence.
Appears in 2 contracts
Sources: Loan Agreement (Prime Group Realty Trust), Loan Agreement (Prime Group Realty Trust)
Securitization. (a) Lender shall have The Borrower hereby acknowledges that the right (i) to Lenders and their Affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”) through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by ▇▇▇▇▇’▇, Standard & Poor’s or one or more other rating agencies (the “Rating Agencies”). Any certificatesThe Borrower shall cooperate with the Lenders and their Affiliates to effect the Securitization including by (a) amending this Agreement and the other Loan Documents, notes or other securities issued and executing such additional documents, as reasonably requested by the Lenders in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s electionthe Securitization, each note and/or component comprising provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan may be subject Documents or change or affect in a manner adverse to one or more Secondary Market Transactions.
the Borrower the financial terms of the Loans, (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide providing such information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which as may be reasonably required requested by Lender the Lenders in order connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loans a certificate (i) agreeing to satisfy indemnify the market standards to which Lender customarily adheres or which may be required in the marketplaceLenders and their Affiliates, by prospective investors, any of the Rating Agencies, applicable Legal Requirements and/or or any party providing credit support or otherwise participating in the marketplace Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Liabilities”) to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to any Agent or Lender in connection with any Secondary Market TransactionsLoan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, including to:
or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans and (iii) (A) provide updated financial and other information with respect agreeing to reimburse the PropertiesAgents, the business operated at the Properties, Borrower, Sponsor Lenders and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and their Affiliates for any legal or other information (to extent required expenses reasonably incurred by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Persons in connection with defending the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsLiabilities.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 2 contracts
Sources: Financing Agreement (Gametech International Inc), Financing Agreement (Metalico Inc)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Guarantor, Sponsor, SPE Component Entity and Manager (provided, that, such financial information with respect to Sponsor and Guarantor shall, unless otherwise agreed to by Borrower, be in the Managersame format as delivered to Lender in connection with the closing of the Loan), including, without limitation, (B) updated budgets relating to the information set forth on Exhibit C attached heretoProperty, and (BC) provide updated budgets appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other information (to extent required by investors or Rating Agencies) relating to due diligence investigations of the Properties Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest satisfactory in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory form and substance to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily reasonably require; and
(iv) execute such amendments to the Loan Documents, the Property Documents and Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan Parties’ organizational documents requested into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (A1) cause the initial weighted average of change the interest rates for all Components in rate, the stated maturity or the amortization of principal set forth herein, (2) change the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components the Loan, (3) alter the restrictions on transfers of equity interests in Borrower or transfers of the Property, in each case, as set forth herein, (4) alter any limitations of Borrower’s recourse obligations under the Loan as contained herein or (5) alter any other material obligation, right or privilege of Borrower under the Loan Documents (other than to a de minimis extent or except, in the aggregate immediately after the effective date case of such modification to exceed the outstanding principal balance each of all Components (1) through (5) above, (y) as provided in the aggregate immediately prior to such modification, subsection (C) require Borrower to make or remake any representations or warrantiesabove and (z) in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, (D) require principal amortization but which shall have the same initial weighted average coupon of the Loan (other than repayment in full on the Maturity Dateoriginal Note), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant ObligorUpon request, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for from time to time such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that as Lender determines to be a Significant Obligor necessary, advisable or appropriate for the two most recent Fiscal Years complying with any applicable legal requirements (including those applicable to Lender or any Servicer (including, without limitation and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as extent applicable, Regulation AB)) within the timeframes necessary, advisable or any amendment, modification or replacement thereto or other Legal Requirements relating appropriate in order to a Securitization or as shall otherwise be reasonably requested by Lendercomply with such legal requirements.
Appears in 2 contracts
Sources: Loan Agreement (Clipper Realty Inc.), Loan Agreement (Clipper Realty Inc.)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace by prospective investors, transferees, lenders and/or participants or by the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor Guarantor, Sponsor, SPE Component Entity and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property, which (in each case) are available or reasonably obtainable using systems of Borrower and Manager that are currently in place (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies, (B) cooperate with Lender in obtaining updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Properties and (C) use commercially reasonable efforts to obtain revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially which may be relied upon by Lender and the same Rating Agencies, as those delivered as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies with respect to Borrower and SPE Component Entities and due execution and enforceability of the Closing DateLoan Documents, customary in Secondary Market Transactions or required by the Rating Agencies, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and, in each case consistent with the facts covered by such representations and warranties as they exist on the date thereof;
(iv) execute such amendments to the Loan Documents, the Mezzanine Loan Documents and Borrower’s, Mezzanine Borrower’s, any Operating Lessee Pledgor’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies in order to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) further bifurcating the Loan Parties’ organizational documents requested into two or more additional components, re-allocating the Loan among existing components or existing Notes, reducing the number of components of the Loan or of any Note and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts of the Loan, the Note and any Mezzanine Loan, including, without limitation, re-allocating the portions of each of the Loan and/or any Mezzanine Loan that accrue at a fixed rate of interest and that accrue at a floating rate of interest and/or re-allocating the portion of the Loan and any Mezzanine Loan which is subject to open prepayment in accordance with the terms and conditions of the Loan Documents (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that (I) Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of change any economic or non-economic term, including the interest rates for all Components in rate or the aggregate immediately after the effective date stated maturity (except as would not have an adverse effect on Borrower, Guarantor and/or any of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (their Affiliates other than repayment in full on the Maturity Date), (Eto a de minimus extent) change any Stated Maturity Date or (F) otherwise increase the obligations (other than to a de minimus extent) or reduce decrease the rights of Borrower pursuant to the Loan Documents (other than to a de minimus extent), except in connection with a Loan Bifurcation which may result in varying interest rates but will have the same weighted average coupon of the original Note (except following an Event of Default or any Guarantor under principal payments received on the Loan) and (II) none of Borrower, Mezzanine Borrower, any Operating Lessee Pledgor nor any SPE Component Entity shall be required to modify its organizational structure or make any other modification, if such modification would cause it or any of its Affiliates or direct or indirect owners to incur any additional tax liability or suffer other adverse consequences (other than to a de minimus extent). Borrower acknowledges and agrees that the execution of any Loan Bifurcation in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents; and
(v) prior to the Securitization of the entire Loan, reallocate the Allocated Loan Amounts of the Properties in Lender’s reasonable discretion (and reasonably approved by Borrower, such reasonable approval not to be unreasonably withheld, conditioned or delayed). Notwithstanding anything herein to the contrary, with respect to any compliance by any Borrower Party with requests made pursuant to this Section 11.1 or any of Sections 11.2, 11.8 and 11.9 with respect to any Secondary Market Transaction, each Borrower Party shall pay their own costs and expenses incurred prior to the consummation of the corresponding Secondary Market Transaction in connection therewith (including, without limitation, attorneys’ fees and expenses) and Lender shall pay its own costs and expenses in connection therewith (including, without limitation, attorneys’ fees and expenses); provided that Lender shall reimburse the Borrower Parties for any reasonable, out-of-pocket costs incurred by the Borrower Parties prior to the consummation of the corresponding Secondary Market Transaction in Borrower’s complying with such requests (exclusive of the Borrower Parties’ legal fees, costs and disbursements, which shall be paid by the Borrower Parties and exclusive of all of Borrower’s costs and expenses with respect to Section 11.1(b)(v) hereof, which shall be paid by the Borrower Parties).
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon reasonable request the following financial information:
(i) if If Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (), but be less than twenty percent (20%)) , of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if If Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X))AB.
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data In the event all or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant a portion of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be Loan is included in a securitization involving a registered public offering of Securities pursuant to the Securitization such Securities Act, and if Lender determines that such Tenant Borrower alone or group Borrower and one or more Affiliates of Affiliated Tenants would constitute Borrower collectively, or the Properties alone or the Properties and the Related Properties, collectively, are a Significant Obligor. , then Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, selected financial data and/or or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected Any financial data or financial statements meeting required pursuant to Section 11.1(d) above shall be furnished to Lender (1) not later than forty-one (41) days after the requirements end of Item 1112(b)(1) or the fiscal quarter of Borrower and (2) not later than eighty-five (85) days after the end of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders each fiscal year of the Securities under Regulation AB or applicable Legal RequirementsBorrower.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time promptly following Lender’s request therefor, and in any event within the time periods required to comply with Regulation AB or other Legal Requirements relating to a Securitization (but no earlier than five (5) Business Days following notice from Lender), with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization.
(g) All financial data and statements provided by Borrower hereunder in connection with a Securitization shall meet (and shall be accompanied by such auditors’ reports or consents and such certificates as shall otherwise may be reasonably requested necessary to comply with) the requirements of Regulation AB and other Legal Requirements, in each case to the extent applicable and as specified by Lender.
(h) Provided that no Event of Default has occurred and is continuing, Lender agrees that it shall not sell any portion of the Loan or participation interest therein (excluding any note, certificate or other instrument issued in a Securitization) to an Excluded Entity in connection with the initial sale thereof. For the avoidance of doubt, Borrower’s rights under this Section do not apply to any sale of Securities or similar certificated instruments, and apply solely to the initial sale of a note, participation or mezzanine interest and not any subsequent resale thereof. Lender shall be entitled to rely on a representation from a transferee that such transferee is not an Excluded Entity without any need for independent investigation.
Appears in 2 contracts
Sources: Loan Agreement (NorthStar Healthcare Income, Inc.), Loan Agreement (Northstar Realty Finance Corp.)
Securitization. (a) Lender shall have The Borrowers hereby acknowledge that the right (i) to Lenders and any of their affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Obligations (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Obligations as collateral security for loans to such Lenders or their affiliates or through the sale of the Obligations or the issuance of direct or indirect interests in the Obligations, notes which loans to such Lenders or their affiliates or direct or indirect interests will be rated by ▇▇▇▇▇’▇, Standard & Poor’s or one or more other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as rating agencies (the “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising the Loan may be subject The Borrowers shall cooperate reasonably with such Lenders and their affiliates to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with effect any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, such Securitization including, without limitation, the information set forth on Exhibit C attached hereto, and by (Ba) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party amending this Agreement and the other conditions set forth in Rule 3-14 of Regulation S-X have been metLoan Documents, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Furtherand executing such additional documents, if as reasonably requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to LenderLenders, in connection with the preparation Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrowers, (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations (including administrative duties or reporting obligations), of the Disclosure Borrowers under the Credit Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity change or entities are affect in a Significant Obligor and either (x) filings pursuant manner adverse to the Exchange Act in connection with or relating to Borrowers the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders financial terms of the Securities under Regulation AB or applicable Legal Requirements.
Obligations, and (eb) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, providing such information as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise may be reasonably requested by Lendersuch Lenders, in connection with the rating of the Obligations or the Securitization, (c) providing in connection with any rating of the Obligations, a certificate (i) agreeing to indemnify such Lenders and any of their affiliates, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Liabilities”) to which such Lenders, their affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Credit Document or in any writing delivered by or on behalf of the Borrowers and their respective affiliates to the Agent or one or more Lenders in connection with any Credit Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and such indemnity shall survive any transfer by such Lenders or their successors or assigns of the Obligations, and (ii) agreeing to reimburse such Lenders and any of their affiliates and other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Liabilities; and (d) providing such information regarding the Borrowers, the Guarantors, the Collateral and other property, assets and business of the Borrowers and the Guarantors (including appraisals and valuations) as may be reasonably requested by such Lenders or their successors or assignees.
Appears in 2 contracts
Sources: Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as “Secondary Market Transactions”, the transactions referred to in clause (i) shall hereinafter be referred to as a “Secondary Market Transaction” Syndication”, and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower and Guarantor shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market TransactionsTransactions (but in no event shall such cooperation result in any increase in any obligations of Borrower or rights of Lender or decrease in any rights of Borrower or obligations of Lender under the Loan Documents or change in any of the economic or monetary provisions of the Loan or the Loan Documents and not result in any “rate creep” under the Loan Agreement (other than due to the occurrence and continuance of an Event of Default), including Borrower acknowledging and agreeing that Borrower and/or Guarantor complying with requests by Lender pursuant to, and in accordance with, this Section 11.1 in and of itself shall not be deemed to increase any obligations of Borrower or decrease any rights of Borrower)), provided Lender shall reimburse Borrower and Guarantor for any reasonable, out-of-pocket costs and expenses incurred by Borrower and/or Guarantor in connection with compliance with the terms and provisions of Section 11.1(b). Suchcooperation shall, include, without limitation, to:
(i) (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor Guarantor, SPE Component Entity and the any Affiliated Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property, which (in each case) are available or reasonably obtainable using systems of Borrower that are currently in place (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies, and (B) cooperate with Lender in obtaining updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property, as requested by the Rating Agencies in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially which may be relied upon by Lender and the same Rating Agencies, as those delivered as to substantive non-consolidation, matters of Delaware and federal bankruptcy law relating to limited liability companies with respect to Borrower and SPE Component Entities and due execution and enforceability of the Closing DateLoan Documents, customary in Secondary Market Transactions or required by the Rating Agencies, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to Transaction, representations and warranties made in the extent that any Loan Documents consistent with the facts covered by such representations and warranties are and can only be made as of a specific they exist on the date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily requirethereof; and
(iv) execute such amendments to the Loan Documents and Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies in order to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan Parties’ organizational documents requested into two or more components, re-allocating the Loan among existing components or existing Notes, reducing the number of components of the Loan or of any Note and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts of the Loan (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative monthly payment dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that (I) Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of change any economic or non-economic term, including the interest rates for all Components in rate or the aggregate immediately after the effective date stated maturity (except as would not have an adverse effect on Borrower, Guarantor and/or any of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (Btheir Affiliates) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce decrease the rights of Borrower pursuant to the Loan Documents or increase the rights or reduce the obligations of Lender, except in connection with a Loan Bifurcation which may result in varying fixed interest rates but will have the same weighted average coupon of the original Note throughout the term (i.e., there shall be no “rate creep”) (except following an Event of Default) and (II) none of Borrower nor any SPE Component Entity shall be required to modify its organizational structure or make any other modification, if such modification would cause it or any Guarantor under of its Affiliates or direct or indirect owners to incur any additional tax liability or suffer other adverse consequences. Borrower and Lender acknowledge and agree that the execution of any Loan Bifurcation in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties Property alone or the Properties Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon reasonable request the following financial information:
(i) if If Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (), but be less than twenty percent (20%)) , of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties Property and the Related Properties for the most recent Fiscal Year and interim period or selected financial data as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if If Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X))AB.
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data In the event all or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant a portion of the Properties ifLoan is included in a Securitization involving a registered public offering of Securities pursuant to the Securities Act, in connection with a Securitization, and if Lender reasonably determines there to bethat Borrower alone or Borrower and one or more Affiliates of Borrower collectively, as of or the cutoff date for such SecuritizationProperty alone or the Property and the Related Properties, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute collectively, are a Significant Obligor. , then Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, a statement of net operating income for the Property or Related Properties or selected financial data and/or or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected Any financial data or financial statements meeting required pursuant to Section 11.1(d) above shall be furnished to Lender (1) with respect to quarterly reporting, not later than forty-one (41) days after the requirements end of Item 1112(b)(1) or the fiscal quarter of Borrower and (2) of with respect to all other reporting, no later than five (5) Business Days prior to the date required pursuant to Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time promptly following Lender’s request therefor, and in any event within the time periods required to comply with Regulation AB or other Legal Requirements relating to a Securitization (but no earlier than five (5) Business Days following notice from Lender), with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization.
(g) All financial data and statements provided by Borrower hereunder in connection with a Securitization shall meet (and shall be accompanied by such auditors’ reports or consents and such certificates as shall otherwise may be reasonably requested necessary to comply with) the requirements of Regulation AB and other Legal Requirements, in each case to the extent applicable and as specified by Lender.
(h) Notwithstanding anything to the contrary in this Agreement, but subject to Section 11.5, Borrower shall not be (and Lender shall be) responsible for any reasonable, out-of-pocket costs incurred by Borrower due to its compliance with the terms and provisions of Section 11.1 and the deliveries required to be made by Borrower and Guarantor pursuant to Section 11.2(c).
Appears in 2 contracts
Sources: Loan Agreement (American Realty Capital New York City REIT, Inc.), Loan Agreement (American Realty Capital New York City REIT, Inc.)
Securitization. (a) Lender shall have The Borrowers hereby acknowledge that the right (i) to Lenders and any of their affiliates may sell or otherwise transfer securitize the Loan Obligations (a "Securitization") through the pledge of the Obligations as collateral security for loans to such Lenders or any portion thereof as a whole loan, (ii) to sell participation their affiliates or through the sale of the Obligations or the issuance of direct or indirect interests in the LoanObligations, which loans to such Lenders or (iii) to securitize the Loan their affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the "Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection "). The Borrowers shall cooperate reasonably with such Lenders and their affiliates to effect any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, such Securitization including, without limitation, the information set forth on Exhibit C attached hereto, and by (Ba) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party amending this Agreement and the other conditions set forth in Rule 3-14 of Regulation S-X have been metLoan Documents, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Furtherand executing such additional documents, if as reasonably requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to LenderLenders, in connection with the preparation Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrowers, (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations (including administrative duties or reporting obligations), of the Disclosure Borrowers under the Credit Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity change or entities are affect in a Significant Obligor and either (x) filings pursuant manner adverse to the Exchange Act in connection with or relating to Borrowers the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders financial terms of the Securities under Regulation AB or applicable Legal Requirements.
Obligations, and (eb) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, providing such information as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise may be reasonably requested by Lendersuch Lenders, in connection with the rating of the Obligations or the Securitization, (c) providing in connection with any rating of the Obligations, a certificate (i) agreeing to indemnify such Lenders and any of their affiliates, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization (collectively, the "Securitization Parties") for any losses, claims, damages or liabilities (the "Liabilities") to which such Lenders, their affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Credit Document or in any writing delivered by or on behalf of the Borrowers and their respective affiliates to the Agent or one or more Lenders in connection with any Credit Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and such indemnity shall survive any transfer by such Lenders or their successors or assigns of the Obligations, and (ii) agreeing to reimburse such Lenders and any of their affiliates and other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Liabilities; and (d) providing such information regarding the Borrowers, the Guarantors, the Collateral and other property, assets and business of the Borrowers and the Guarantors (including appraisals and valuations) as may be reasonably requested by such Lenders or their successors or assignees.
Appears in 2 contracts
Sources: Credit Agreement (Chiquita Brands International Inc), Credit Agreement (Chiquita Brands International Inc)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization (including a collateralized debt obligation (CDO) securitization). (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace by prospective investors, transferees, lenders and/or participants or by the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide or cause Mortgage Borrower, Mezzanine A Borrower and/or Mezzanine B Borrower, to (A) provide updated financial and other information with respect to the Properties, the Applicable Collateral, the business operated at the Properties, Borrower, Sponsor Mortgage Borrower, Mezzanine A Borrower, Mezzanine B Borrower, Guarantor, Sponsor, each Applicable SPE Component Entity and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property, which (in each case) are available or reasonably obtainable using systems of Borrower and Manager that are currently in place (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies, (B) cooperate with Lender in obtaining updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Properties and (C) use commercially reasonable efforts to obtain revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially which may be relied upon by Lender and the same Rating Agencies, as those delivered as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies with respect to Borrower, Mortgage Borrower, any Mezzanine Borrower and the Applicable SPE Component Entities and due execution and enforceability of the Closing DateLoan Documents, customary in Secondary Market Transactions or required by the Rating Agencies, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and, in each case consistent with the facts covered by such representations and warranties as they exist on the date thereof;
(iv) execute such amendments to the Loan Documents, the Mezzanine Loan Documents, and the Mortgage Loan Documents and Borrower’s, Mezzanine Borrower’s, Mortgage Borrower’s and any Operating Lessee Pledgor’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies in order to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) further bifurcating the Loan Parties’ organizational documents requested into two or more additional components, re-allocating the Loan among existing components or existing Notes, reducing the number of components of the Loan or of any Note and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts of the Loan, the Note and any Mezzanine Loan, including, without limitation, re-allocating the portions of each of the Loan and/or any Mezzanine Loan that accrue at a fixed rate of interest and that accrue at a floating rate of interest and/or re-allocating the portion of the Loan and any Mezzanine Loan which is subject to open prepayment in accordance with the terms and conditions of the Loan Documents (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that (I) Borrower and/or Guarantor shall not be required to so modify or amend any Loan Document, Mortgage Loan Document or Mezzanine Loan Document if such modification or amendment would (A) cause the initial weighted average of change any economic or non-economic term, including the interest rates for all Components in rate or the aggregate immediately after the effective date stated maturity (except as would not have an adverse effect on Borrower, Guarantor and/or any of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (their Affiliates other than repayment in full on the Maturity Date), (Eto a de minimus extent) change any Stated Maturity Date or (F) otherwise increase the obligations (other than to a de minimus extent) or reduce decrease the rights of Borrower or any Guarantor under Affiliates pursuant to the Loan Documents, Mortgage Loan Documents or Mezzanine Loan Documents (other than to a de minimus extent), except in connection with a Loan Bifurcation which may result in varying interest rates but will have the same weighted average coupon of the original Note (except following an Event of Default) and (II) none of Borrower, Mortgage Borrower, any Mezzanine Borrower, any Operating Lessee Pledgor nor any SPE Component Entity shall be required to modify its organizational structure or make any other modification, if such modification would cause it or any of its Affiliates or direct or indirect owners to incur any additional tax liability or suffer other adverse consequences (other than to a de minimus extent). Borrower acknowledges and agrees that the execution of any Loan Bifurcation in accordance with terms and conditions hereof shall not in itself increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents; and
(v) prior to the Securitization of the entire Loan, reallocate the Allocated Loan Amounts in Lender’s reasonable discretion and reasonably approved by Borrower, such reasonable approval not to be unreasonably withheld, conditioned or delayed. Notwithstanding anything herein to the contrary, with respect to any compliance by any Borrower Party with requests made pursuant to this Section 11.1 or any of Sections 11.2, 11.8 and 11.9 with respect to any Secondary Market Transaction, each Borrower Party shall pay their own costs and expenses incurred prior to the consummation of the corresponding Secondary Market Transaction in connection therewith (including, without limitation, attorneys’ fees and expenses) and Lender shall pay its own costs and expenses in connection therewith (including, without limitation, attorneys’ fees and expenses); provided that Lender shall reimburse the Borrower Parties for any reasonable, out-of-pocket costs incurred by the Borrower Parties prior to the consummation of the corresponding Secondary Market Transaction in Borrower’s complying with such requests (exclusive of the Borrower Parties’ legal fees, costs and disbursements, which shall be paid by the Borrower Parties and exclusive of all of Borrower’s costs and expenses with respect to Section 11.1(b)(v) hereof, which shall be paid by the Borrower Parties).
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon reasonable request the following financial information:
(i) if If Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (), but be less than twenty percent (20%)) , of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties Property and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if If Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X))AB.
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data In the event all or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant a portion of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be Loan is included in a securitization involving a registered public offering of Securities pursuant to the Securitization such Securities Act, and if Lender determines that such Tenant Borrower alone or group Borrower and one or more Affiliates of Affiliated Tenants would constitute Borrower collectively, or the Properties alone or the Properties and the Related Properties, collectively, are a Significant Obligor. , then Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, selected financial data and/or or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected Any financial data or financial statements meeting required pursuant to Section 11.1(d) above shall be furnished to Lender (1) not later than forty-one (41) days after the requirements end of Item 1112(b)(1) or the fiscal quarter of Borrower and (2) not later than eighty-five (85) days after the end of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders each fiscal year of the Securities under Regulation AB or applicable Legal RequirementsBorrower.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time promptly following Lender’s request therefor, and in any event within the time periods required to comply with Regulation AB or other Legal Requirements relating to a Securitization (but no earlier than five (5) Business Days following notice from Lender), with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization.
(g) All financial data and statements provided by Borrower hereunder in connection with a Securitization shall meet (and shall be accompanied by such auditors’ reports or consents and such certificates as shall otherwise may be reasonably requested necessary to comply with) the requirements of Regulation AB and other Legal Requirements, in each case to the extent applicable and as specified by Lender.
(h) Provided that no Event of Default has occurred and is continuing, Lender agrees that it shall not sell any portion of the Loan or participation interest therein (excluding any note, certificate or other instrument issued in a Securitization) to an Excluded Entity in connection with the initial sale thereof. For the avoidance of doubt, Borrower’s rights under this Section do not apply to any sale of Securities or similar certificated instruments, and apply solely to the initial sale of a note, participation or mezzanine interest and not any subsequent resale thereof. Lender shall be entitled to rely on a representation from a transferee that such transferee is not an Excluded Entity without any need for independent investigation.
(i) Notwithstanding anything to the contrary contained herein, the provisions regarding the delivery of REMIC Opinions and satisfaction of REMIC Requirements will only apply if all or any portion of the Loan has been securitized.
Appears in 2 contracts
Sources: Mezzanine Loan Agreement (Northstar Realty Finance Corp.), Mezzanine Loan Agreement (NorthStar Healthcare Income, Inc.)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market TransactionsTransaction, including to:Borrower shall assist Lender (at Lender’s sole cost and expense, other than any de minimis costs of Borrower, which shall be paid by Borrower):
(i) provide (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrowerany SPE Party, Sponsor Guarantor, Sponsor, any SPE Component Entity and the Manager, including, without limitation, the information as set forth on Exhibit C attached heretoherein, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property, (C) updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance acceptable to Lender and the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially which may be relied upon by Lender, the same NRSROs and their respective counsel, agents and representatives, as those delivered as of may be customary in Secondary Market Transactions or required by the Closing DateRating Agencies, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest satisfactory in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory form and substance to Lender and the Rating Agencies;
(iii) provide updated (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the applicable Secondary Market Transaction (except to the extent that any such Transaction) representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and;
(iv) execute such amendments to the Loan Documents, the Property Documents and any SPE Party’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the independent director provisions provided on Exhibit C attached hereto, in each case, (B) bifurcating the Loan Parties’ organizational documents requested into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity (Aexcept as provided in subclause (C) cause above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying interest rates and, as applicable, amortization schedules, but which shall have the same initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate coupon of the original Components Note; and
(v) review any Disclosure Document or any interim draft thereof furnished by Lender to Borrower with respect to information contained therein that was furnished to Lender by or on behalf of any SPE Party specifically in connection with the aggregate immediately prior preparation of such Disclosure Document and provide to Lender any revisions to such modification, (B) cause the outstanding principal balance Disclosure Document or interim draft thereof necessary to insure that such reviewed information does not contain any untrue statement of all Components in the aggregate immediately after the effective date of such modification a material fact or omit to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower state any material fact necessary to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documentsstatements contained therein not misleading.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant ObligorUpon request, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for from time to time such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that as Lender determines to be a Significant Obligor necessary, advisable or appropriate for the two most recent Fiscal Years complying with any applicable legal requirements (including those applicable to Lender or any Servicer (including, without limitation and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as extent applicable, Regulation AB)) within the timeframes necessary, advisable or any amendment, modification or replacement thereto or other Legal Requirements relating appropriate in order to a Securitization or as shall otherwise be reasonably requested by Lendercomply with such legal requirements.
Appears in 2 contracts
Sources: Loan Agreement (Medalist Diversified REIT, Inc.), Loan Agreement (Medalist Diversified REIT, Inc.)
Securitization. Lender, at its option, may elect to effect a securitization of the Loan by means of the issuance of certificates of interest therein or notes secured thereby (athe "Securities") rated by one or more Rating Agencies (the "Securitization"). In such event and upon request by Lender shall have to seek to effect such a Securitization, Borrower shall, subject to the right restrictions on disclosure set forth in Section 8.27, promptly thereafter
(i) certifying that Borrower has carefully examined such private placement memorandum or registration statement, as applicable, including the sections entitled "Special Considerations", "Description of the Loan and the Underlying Properties", "Operator", "The Borrower" and "Certain Legal Aspects of the Loan" (or similarly titled sections), and that such Sections (and any other Sections reasonably requested), insofar as they relate solely to sell or otherwise transfer Borrower, its Affiliates, the Loan or (to Borrower's knowledge) the Collateral, do not contain any portion thereof as untrue statement of a whole loanmaterial fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) to sell participation interests in indemnifying Lender, the Loanunderwriter or placement agent and any of their Affiliates for any losses, claims, damages or liabilities (iiithe "Liabilities") to securitize which such parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact relating to Borrower, its Affiliates, the Loan or any portion thereof the Collateral contained in such Sections or arise out of or are based upon the omission or alleged omission to state therein a single asset securitization material fact relating to Borrower, its Affiliates, the Loan or a pooled loan securitization. (The transactions referred to Borrower's knowledge) the Collateral required to be stated therein or necessary in clauses (i)order to make the statements therein, (ii) in light of the circumstances under which they were made, not misleading and (iii) are each hereinafter referred agreeing to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes reimburse such parties for any legal or other securities issued expenses reasonably incurred by such parties in connection with a Secondary Market Transaction are hereinafter referred investigating or defending the Liabilities, (d) causing to be rendered (at Lender's expense) such customary and reasonable opinion letters as “Securities”). At Lender’s election, each note and/or component comprising may be requested by and satisfactory to any Rating Agency including substantive nonconsolidation opinion letters and an opinion letter from local counsel to the Borrower stating that the assignment of the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, and the Loan Parties shall use reasonable efforts Documents to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace a trustee in connection with any Secondary Market Transactionsthe Securitization is enforceable, including to:
(ie) (A) provide updated financial making such customary and other information reasonable representations, warranties and covenants with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Managermembers of the Borrower Control Group, includingas may be requested by any Rating Agency, without limitation(f) providing such information regarding the Collateral and Borrower, members of the information set forth on Exhibit C attached heretoBorrower Control Group, and (B) provide updated budgets their respective Affiliates as may be reasonably requested by a Rating Agency or potential investors in Securities or otherwise reasonably required in connection with an election of REMIC or FASIT or other tax status and other information (to extent required ongoing administration and reporting by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained any trust formed in connection with the origination Securitization, (g) amending Borrower's organizational documents or making such other reasonable changes to the structure of the Loan;
(ii) provide (A) an updated Insolvency OpinionBorrower or such of its partners or members or shareholders as may be required by any Rating Agency to conform to requirements customarily imposed in similar transactions, and (Bh) updated opinions of Borrower’s obtaining a comfort letter (in customary form and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan containing customary exceptions) from a nationally recognized accounting firm in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory financial information relating to Lender Borrower and the Rating Agencies;
(iii) (A) confirm that as members of the closing date of any Secondary Market Transaction, the representations Borrower Control Group and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lenderis, in connection with the preparation of the Disclosure Documents and on an ongoing basisSecuritization, financial data and/or financial statements with respect presented in a private placement memorandum or prospectus. In no event shall Borrower be required to such Tenants meeting the requirements of Item 1112(b)(1) pay any Rating Agency or (2) of Regulation AB, as specified by Lender, but only for so long as such entity other fees or entities are a Significant Obligor and either (x) filings pursuant expenses or be required to the Exchange Act pay any costs or expenses whatsoever in connection with or relating any such Securitization other than the overhead and internal costs incurred by Borrower in cooperating in the manner described in clauses (a) through (h) above. Notwithstanding the provisions of this Section 8.34.3 to the Securitization (an “Exchange Act Filing”) are contrary, neither Borrower nor any member of the Borrower Control Group shall be required to be made under applicable Legal Requirements release or (y) comparable disclose any non-public information is required concerning any Entity, the securities of which are traded publicly, to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirementsany Person who has not furnished a confidentiality agreement.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 2 contracts
Sources: Loan Agreement (Lazard Freres Real Estate Investors LLC), Loan Agreement (Lazard Freres Real Estate Investors LLC)
Securitization. (a) Lender shall have Each Borrower hereby acknowledges that the right (i) to Lenders and their Affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”) through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by M▇▇▇▇’▇, Standard & Poor’s or one or more other rating agencies (the “Rating Agencies”). Any certificatesEach Borrower shall cooperate with the Lenders and their Affiliates to effect the Securitization including by (a) amending this Agreement and the other Loan Documents, notes or other securities issued and executing such additional documents, as reasonably requested by the Lenders in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s electionthe Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrowers and (ii) any such amendment or additional documentation does not materially adversely affect the rights, each note and/or component comprising or materially increase the obligations, of the Borrowers under the Loan may be subject Documents or change or affect in a manner adverse to one or more Secondary Market Transactions.
the Borrowers the financial terms of the Loans, (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide providing such information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which as may be reasonably required requested by Lender the Lenders in order connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loans a certificate (i) agreeing to satisfy indemnify the market standards to which Lender customarily adheres or which may be required in the marketplaceLenders and their Affiliates, by prospective investors, any of the Rating Agencies, applicable Legal Requirements and/or or any party providing credit support or otherwise participating in the marketplace Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Liabilities”) to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to any Agent or Lender in connection with any Secondary Market TransactionsLoan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, including to:
or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans and (iii) (A) provide updated financial and other information with respect agreeing to reimburse the PropertiesAgents, the business operated at the Properties, Borrower, Sponsor Lenders and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and their Affiliates for any legal or other information (to extent required expenses reasonably incurred by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Persons in connection with defending the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsLiabilities.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Each Borrower hereby acknowledges that the Lender shall have the right (i) to and any of its Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the Lender or any portion thereof as a whole loan, (ii) to sell participation its Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lender or (iii) to securitize the Loan its Affiliate or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the "Rating Agencies, applicable Legal Requirements and/or otherwise in "). Each Borrower shall cooperate with the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial Lender and other information with respect its Affiliates to effect the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lender in connection with the origination of the Loan;
Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on any Borrower and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of any Borrower under the Loan Documents or change or affect in a manner adverse to any Borrower the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lender in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lender and any of its Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "Securitization Parties") for any losses, claims, damages or liabilities (Athe "Liabilities") confirm that to which the Lender, its Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause in any writing delivered by or on behalf of any Borrower and its Affiliates to the initial weighted average Lender in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in circumstances under which they were made, not misleading and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Lender or its successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower Loans and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if agreeing to reimburse the Lender reasonably determines that the principal amount and any of the Loan together with its Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Financing Agreement (Enherent Corp)
Securitization. (a) Lender shall have The Borrower hereby acknowledges that the right (i) to Lenders and any of their Affiliates may sell or otherwise transfer securitize the Loan Obligations (a "Securitization") through the pledge of the Obligations as collateral security for loans to such Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Obligations or the issuance of direct or indirect interests in the LoanObligations, which loans to such Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by Moody's, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the Loan Parties "▇▇▇▇▇▇ Agencies"). The Borrower shall use reasonable efforts cooperate reasonably with such Lenders and their Affiliates to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, the information set forth on Exhibit C attached hereto, and by (Ba) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party amending this Agreement and the other conditions set forth in Rule 3-14 of Regulation S-X have been metLoan Documents, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Furtherand executing such additional documents, if as reasonably requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to LenderLenders, in connection with the preparation Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrower, (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations (including administrative duties or reporting obligations), of the Disclosure Borrower under the Credit Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity change or entities are affect in a Significant Obligor and either (x) filings pursuant manner adverse to the Exchange Act in connection with or relating to Borrower the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders financial terms of the Securities under Regulation AB or applicable Legal Requirements.
Obligations, and (eb) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, providing such information as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise may be reasonably requested by Lendersuch Lenders, in connection with the rating of the Obligations or the Securitization, (c) providing in connection with any rating of the Obligations, a certificate (i) agreeing to indemnify such Lenders and any of their Affiliates, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization (collectively, the "Securitization Parties") for any losses, claims, damages or liabilities (the "Liabilities") to which such Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Credit Document or in any writing delivered by or on behalf of the Borrower and its respective Affiliates to the Agent or one or more Lenders in connection with any Credit Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and such indemnity shall survive any transfer by such Lenders or their successors or assigns of the Obligations, and (ii) agreeing to reimburse such Lenders and any of their Affiliates and other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Liabilities; and (d) providing such information regarding the Borrower, the Guarantors, the Collateral and other property, assets and business of the Borrower and the Guarantors (including appraisals and valuations) as may be reasonably requested by such Lenders or their successors or assignees.
Appears in 1 contract
Sources: Credit Agreement (Chiquita Brands International Inc)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, Loan or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Guarantor, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, fraudulent conveyance, matters of Delaware or Maryland (as applicable) and federal bankruptcy law relating to limited liability companies and true sale or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property and Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest satisfactory in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory form and substance to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan Parties’ organizational documents requested by Lenderinto two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate coupon of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsNote.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower All costs and one or more Affiliates of Borrower expenses (including any guarantor or other Person that is directly or indirectly committed attorneys’ fees and expenses) incurred by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration Borrower’s complying with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to requests made under this Section 11.1 shall be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligorpaid by Lender. All costs and expenses (including attorneys’ fees and expenses) incurred by Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements Borrower’s complying with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be requests made under applicable Legal Requirements or (y) comparable information is required to otherwise this Section 11.1 shall be “available” to holders of the Securities under Regulation AB or applicable Legal Requirementspaid by Borrower.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Lender shall have The Borrower hereby acknowledges that the right (i) to Lenders and their Affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”) through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by M▇▇▇▇’▇, Standard & Poor’s or one or more other rating agencies (the “Rating Agencies”). Any certificatesThe Borrower shall cooperate with the Lenders and their Affiliates to effect the Securitization including by (a) amending this Agreement and the other Loan Documents, notes or other securities issued and executing such additional documents, as reasonably requested by the Lenders in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s electionthe Securitization, each note and/or component comprising provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan may be subject Documents or change or affect in a manner adverse to one or more Secondary Market Transactions.
the Borrower the financial terms of the Loans, (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide providing such information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which as may be reasonably required requested by Lender the Lenders in order connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loans a certificate (i) agreeing to satisfy indemnify the market standards to which Lender customarily adheres or which may be required in the marketplaceLenders and their Affiliates, by prospective investors, any of the Rating Agencies, applicable Legal Requirements and/or or any party providing credit support or otherwise participating in the marketplace Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Liabilities”) to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of the Borrower to any Agent or Lender in connection with any Secondary Market TransactionsLoan Document or arise out of or are based upon the omission to state therein a material fact required to be stated therein, including to:
or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans and (iii) (A) provide updated financial and other information with respect agreeing to reimburse the PropertiesAgents, the business operated at the Properties, Borrower, Sponsor Lenders and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and their Affiliates for any legal or other information (to extent required expenses reasonably incurred by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Persons in connection with defending the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsLiabilities.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Financing Agreement (Compass Group Diversified Holdings LLC)
Securitization. (a) Lender shall have the right (i) to Borrower hereby acknowledges that Lender, its successors or assigns, may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion portions thereof in one or more transactions through the issuance of securities, which securities may be rated by the Rating Agencies (each, a single asset securitization or a pooled loan securitization"Securitization"; and collectively, the "Securitizations"). (The transactions referred Borrower agrees that it shall cooperate with Lender and use Borrower's best efforts to in clauses facilitate the consummation of each Securitization including, without limitation, by: (i) amending or causing the amendment of this Agreement and the other Loan Documents (provided that such amendments shall not materially increase Borrower's obligations hereunder or thereunder), and executing such additional documents, instruments and agreements including amendments to Borrower's organizational documents and preparing financial statements as requested by the Rating Agencies to conform the terms of the Loan to the terms of similar loans underlying completed or pending securitized transactions having or seeking ratings similar to those then being sought in connection with the relevant Securitization; (ii) promptly and reasonably providing such information as may be requested in connection with the preparation of a private placement memorandum, prospectus or a registration statement required to privately place or publicly distribute the securities in a manner which does not conflict with federal or state securities laws; (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued providing in connection with each of (a) a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one preliminary and a private placement memorandum or more Secondary Market Transactions.
(b) If requested by Lendera preliminary and final prospectus, the Loan Parties shall use reasonable efforts to provide information in the possession as applicable, an indemnification certificate (x) certifying that Borrower has carefully examined such private placement memorandum, prospectus or control of Borrower or its Affiliatesregistration statement, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manageras applicable, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination sections entitled "Special Considerations," "Description of the Mortgage Loan;
(ii) provide (A) an updated Insolvency Opinion, ," "The Underlying Mortgaged Property," "The Manager," "Borrower" and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as "Certain Legal Aspects of the Closing DateMortgage Loan," and such sections (and any other sections requested) insofar as they relate to Borrower, which opinions shall be addressedits Affiliates, for purposes the Loan or reliance thereonthe Facility do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as light of the closing date of any Secondary Market Transactioncircumstances under which they were made, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lendernot misleading; provided, however, that Borrower shall not be required to modify indemnify Lender for any losses relating to untrue statements or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components omissions which Borrower identified to Lender in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, writing at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone of Borrower's examination of such memorandum or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-Xprospectus, as applicable, Regulation ABand (y) indemnifying each Indemnified Party, the Issuer and the Advisor for any losses, claims, damages, costs, expenses or any amendmentliabilities (including, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.without limitation, all liabilities under all applicable federal and state securities laws) (collectively, the
Appears in 1 contract
Securitization. (a) Lender shall have The Borrower hereby acknowledges that the right (i) to Lenders and their Affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, notes which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by M▇▇▇▇’▇, S&P or one or more other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as rating agencies (the “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising The Borrower shall cooperate with the Loan may be subject Lenders and their Affiliates to one or more Secondary Market Transactions.
(b) If requested by Lender, effect the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Borrower and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan Documents or change or affect in a manner adverse to the Borrower the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (Athe “Liabilities”) confirm that to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average in any writing delivered by or on behalf of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under Affiliate of the Borrower to the Lenders in connection with any Loan Documents.
(c) IfDocument or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise necessary in order to make payments on all or a part the statements therein, in light of the Loan) collectivelycircumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or the Properties alone their successors or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount assigns of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties Loans and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Lender shall have Borrower hereby acknowledges that the right (i) to Lenders and each of their Affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Borrowings (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Borrowings as collateral security for loans to such Lenders or their Affiliates or through the sale of the Borrowings or the issuance of direct or indirect interests in the Borrowings, notes which loans to such Lenders or their Affiliate or direct or indirect interests will be rated by ▇▇▇▇▇’▇, Standard & Poor’s or one or more other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as rating agencies (the “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use undertake commercially reasonable efforts with such Lenders and their Affiliates to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose costs on Borrower and the Loan;
Lender that elects to securitize its Borrowings shall pay for costs and expenses associated therewith, and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Borrowings, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by such Lenders in connection with the rating of the Borrowings or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Borrowings a certificate (including, without limitationi) agreeing to indemnify such Lenders and any of their Affiliates, any “B Note” purchasers)of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Liabilities”) to which such Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of Borrowers or its Affiliates to the Lender Group in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made not misleading, and such indemnity shall survive any transfer by any Lender or its successors or assigns of the Borrowings, and (ii) agreeing to reimburse such Lenders and any of their Affiliates for any legal or other expenses reasonably satisfactory incurred by such Persons in connection with defending the Liabilities. Notwithstanding the foregoing, it is understood that Borrower and its Affiliates shall not be obligated to incur any increased cost or administrative burden in connection with any Securitization and that the Lender or its Affiliates or Related Funds that consummates a Securitization will retain all rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Loan Document to the same extent as would be required under Section 14.1(e) hereof as if such Lender was an Originating Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of transferee was a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsParticipant.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Lender The Partnership has sold and may continue to sell, from time to time, certain eligible Receivables and related security to a Securitization Facility. CDFJV, in its capacity as a Partner, shall have sole discretion to determine whether or not the right Partnership shall transfer any Receivables to a Securitization Facility and to determine the timing, terms and conditions upon which any such transfer is made; provided, however, that (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests such Securitization Transaction shall be on terms and conditions customary in the Loanindustry for securitizations of similar size, type, asset class and market (it being agreed that any terms or conditions required by any investment bank underwriting or placing the securities being offered in connection with such Securitization Transaction, a party purchasing securities in a private Securitization Transaction, or (iii) to securitize the Loan or by any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (irating agency rating such securities shall be deemed customary), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) Partnership shall hereinafter be referred to as a “Securitization”. Any certificates, notes not assume or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace accept any servicing obligations in connection with any Secondary Market TransactionsSecuritized Receivables or remain liable for any such obligations incurred after the date such Securitized Receivables were sold, including to:
(iiii) all Members of the Management Committee (A) provide updated financial shall be provided with a copy of any Receivables Sale Agreement and other information with respect (B) shall be apprised of the principal terms and conditions of any such Securitization Transaction, (iv) to the Propertiesextent not prohibited by law any party to any such Securitization Transaction or any Affiliate of CDFJV shall be provided with a copy of any sale and/or servicing agreement relating to any such Securitization Transaction upon request, subject, in the sole discretion of CDFJV exercised in good faith, to the right of CDFJV and its Affiliates to withhold any information as CDFJV or its Affiliates deem to be appropriate, and (v) in connection with the transfer of any Receivables to a Securitization Facility, the business operated at Partners will use commercially reasonable efforts to cause the Properties, Borrower, Sponsor and sales price of such Receivables as set forth in any Receivables Sale Agreement to be calculated in a manner consistent with the Managerdefinition of Fair Market Value (as set forth in this Agreement); provided that the Partners acknowledge that the terms of each such Receivables Sale Agreement shall govern all sales of Receivables thereunder, including, without limitation, the information set forth on Exhibit C attached heretosales price of the Receivables sold thereunder. The determination of “Fair Value” as used in any such Receivables Sale Agreement, and (B) provide updated budgets and shall be determined as of the end of the calendar month within which such transfer occurs. The Partners agree to cause the Partnership to cooperate with any servicer under any Securitization Facility with respect to the enforcement of any agreements, instruments, contracts or other information (to extent required by investors documents creating, evidencing, governing, securing or Rating Agencies) otherwise relating to a Securitized Receivable, including, but not limited to, the Properties Manufacturer’s Repurchase Agreement.
(b) PAI may, by prior written notice, delivered not later than the Required Withdrawal Notice Date, delivered to CDFJV, either require that the Partnership not enter into any new Securitization Transaction and/or cease selling Receivables to a particular existing Securitization Facility, in both cases, effective as of the date specified in such notice (the “Updated InformationWithdrawal Date”) which were obtained ). The Partnership shall cease selling DocID: ▇▇▇▇-▇▇▇▇-▇▇▇▇.12 Receivables on such Withdrawal Date if and only to the extent that such action would not result in a reduction, withdrawal or downgrading of the then current ratings by any rating agency of any securities issued in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, such Securitization Facility and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection otherwise complies with any Secondary Market Transaction (including, without limitation, any so‑called “B NoteRating Agency Condition” purchasers), or otherwise reasonably satisfactory other similar requirement relating to Lender and the Rating Agencies;
(iii) (A) confirm that as maintenance of the closing date of any Secondary Market Transaction, the representations and warranties as ratings set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any documents governing such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsSecuritization Facility.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Partnership Agreement (Polaris Inc.)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor Guarantor, Sponsor, SPE Component Entity and Manager which are available using currently in place systems of the Manageraforesaid parties, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property, (C) updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance acceptable to Lender and the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest satisfactory in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory form and substance to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily requirerequire (provided, however, that (without limiting any other provisions hereof or of the other Loan Documents) Borrower’s inability to make any such additional representation or warranty without qualification shall not in and of itself constitute an Event of Default hereunder); and
(iv) execute such amendments to the Loan Documents, the Property Documents and Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein (including, without limitation, to add an additional Independent Director), in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan Parties’ organizational documents requested into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (AI) cause change the initial interest rate, the stated maturity (except as provided in subclause (C) above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate coupon of the original Components Note and provide for the same aggregate interest payments over the life of the Loan (except that such weighted average coupon and such aggregate interest payments may increase solely as a result of interest rate “creep” following any prepayment of the Loan during the continuance of an Event of Default or in connection with a prepayment of the Loan as a result of a Casualty or Condemnation), (II) change the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components the Loan, (III) materially and adversely alter the material restrictions on equity transfers in Borrower or transfers of the Property, in each case, as set forth in this Agreement, (IV) materially and adversely alter any material limitations on recourse against Borrower or Guarantor contained herein, or (V) except as provided above, materially and adversely change any material obligation, material right or material privilege of Borrower or Guarantor set forth in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components Loan Documents (except, in the aggregate case of each of the foregoing, to the extent the same would have been affected had the Loan Bifurcation existed as of the Closing Date based on the differences in being a party to a bifurcated loan as opposed to a non-bifurcated loan). Notwithstanding anything herein to the contrary and except as otherwise provided in the immediately prior succeeding sentence, with respect to such modificationany compliance by any Borrower Party with requests made pursuant to this Section 11.1(b) with respect to any Secondary Market Transaction, (Ci) require Borrower to make or remake any representations or warrantiesLender shall pay its owns costs and expenses in connection therewith (including, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Datewithout limitation, attorneys’ fees and expenses), (Eii) change Borrower shall pay all of Lender’s reasonable, out-of-pocket costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) solely in connection with the Excluded Items and (iii) Lender shall reimburse Borrower for any Stated Maturity Date or reasonable, out-of-pocket, third party costs incurred by Borrower prior to the consummation of the corresponding Secondary Market Transaction in Borrower’s complying with requests made pursuant to this Section 11.1(b) (F) otherwise increase exclusive of the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsExcluded Items).
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant ObligorUpon request, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for from time to time such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that as Lender determines to be a Significant Obligor necessary, advisable or appropriate for the two most recent Fiscal Years complying with any applicable legal requirements (including those applicable to Lender or any Servicer (including, without limitation and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as extent applicable, Regulation AB)) within the timeframes necessary, advisable or any amendment, modification or replacement thereto or other Legal Requirements relating appropriate in order to a Securitization or as shall otherwise be reasonably requested by Lendercomply with such legal requirements.
Appears in 1 contract
Sources: Loan Agreement (Lightstone Value Plus Real Estate Investment Trust III, Inc.)
Securitization. (a) Lender shall have Each Borrower hereby acknowledges that the right (i) to Lenders and their Affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”) through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by ▇▇▇▇▇’▇, Standard & Poor’s or one or more other rating agencies (the “Rating Agencies”). Any certificatesBorrowers shall cooperate with the Lenders and their Affiliates to effect the Securitization including by (a) amending this Agreement and the Other Documents, notes or other securities issued and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrowers and (ii) any such amendment or additional documentation does not adversely affect the rights, or increase the obligations, of the Borrowers hereunder or under the Other Documents or change or affect in a Secondary Market Transaction are hereinafter referred manner adverse to as “Securities”). At Lender’s electionBorrowers the financial terms of the Loans, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide providing such information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which as may be reasonably required requested by Lender the Lenders in order connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loan a certificate (i) agreeing to satisfy indemnify the market standards to which Lender customarily adheres or which may be required in the marketplaceLenders and their Affiliates, by prospective investors, any of the Rating Agencies, applicable Legal Requirements and/or or any party providing credit support or otherwise participating in the marketplace Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Liabilities”) to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in this Agreement or any Other Document or in any writing delivered by or on behalf of any Borrower to Agent or Lender in connection with this Agreement or any Secondary Market TransactionsOther Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, including to:
or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans and (iii) (A) provide updated financial and other information with respect agreeing to the Propertiesreimburse Agent, the business operated at the Properties, Borrower, Sponsor Lenders and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and their Affiliates for any legal or other information (to extent required expenses reasonably incurred by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Persons in connection with defending the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsLiabilities.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Senior Credit Agreement
Securitization. (a) Lender shall have The Borrowers hereby acknowledge that the right (i) to Lenders and any of their Affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, notes which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by ▇▇▇▇▇’▇, Standard & Poor’s or one or more other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as rating agencies (the “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising The Borrowers shall cooperate with the Loan may be subject Lenders and their Affiliates to one or more Secondary Market Transactions.
(b) If requested by Lender, effect the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Borrowers and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrowers under the Loan Documents or change or affect in a manner adverse to the Borrowers the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and any of their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (Athe “Liabilities”) confirm that to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification made by or amendment would (A) cause on behalf of, or in any writing delivered by or on behalf of, the initial weighted average Borrowers and their Affiliates to the Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in circumstances under which they were made, not misleading and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Lenders or their successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower Loans and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount Lenders and any of the Loan together with their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Financing Agreement (High Voltage Engineering Corp)
Securitization. (a) Lender shall have The Borrowers hereby acknowledge that the right (i) to Lenders and any of their Affiliates may sell or otherwise transfer securitize the Loan Loans (a "SECURITIZATION") through the pledge of the Loans as collateral security for loans to the Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the Loan Parties "RATING AGENCIES"). The Borrowers shall use reasonable efforts cooperate with the Lenders and their Affiliates to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, PROVIDED THAT (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Borrowers and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrowers under the Loan Documents or change or affect in a manner adverse to the Borrowers the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and any of their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "SECURITIZATION PARTIES") for any losses, claims, damages or liabilities (Athe "LIABILITIES") confirm that to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification made by or amendment would (A) cause on behalf of, or in any writing delivered by or on behalf of, the initial weighted average Borrowers and their Affiliates to the Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in circumstances under which they were made, not misleading and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Lenders or their successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower Loans and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount Lenders and any of the Loan together with their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Financing Agreement (High Voltage Engineering Corp)
Securitization. The Borrower and the General Partner shall -------------- use commercially reasonable best efforts to cooperate with NACC in its activities in connection with the sale of the Loan as a whole loan or any securitization of the Loan (the "Securitization"), including obtaining ratings -------------- by the Rating Agencies. The Securitization will involve the issuance of rated single- or multi-class securities secured by or evidencing ownership interests in the Transaction Documents (the "Securities"). Such cooperation shall ---------- include, without limitation, the obligation to:
(a) Lender shall have maintain the right (i) ownership of the Properties in an entity that permits the Borrower to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in comply with its obligations under clauses (i), (iix) and (iiiz) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.of Section 5.2;
(b) If to the extent permitted under its existing partnership agreement without the consent of its limited partners, structure and maintain the organizational, operational and financial affairs of the Borrower and the General Partner, (collectively, the "Entities") to enable its counsel to render -------- a reasoned opinion if requested by Lenderthe Rating Agencies in form and substance customary or required for rating the Securities (the "Substantive Consolidation ------------------------- Opinion") that upon a petition for bankruptcy by or against Host Marriott (or - ------- the General Partner) under the United States Bankruptcy Code, neither Host Marriott as a debtor in possession nor its bankruptcy trustees nor creditors nor any other party in interest would have sufficient basis to cause a court to order the Loan Parties shall use reasonable efforts to provide information substantive consolidation of the assets and liabilities of the General Partner or the Borrower in the possession case of a Host Marriott bankruptcy, or control of Borrower or its Affiliatesthe Borrower, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplacecase of a General Partner bankruptcy, by prospective investorswith those of the debtor in bankruptcy, which counsel and which opinion shall be satisfactory to NACC and the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:;
(i) (Ac) provide updated such financial and other information with respect to the Propertieseach Property, the business operated at the Properties, Borrower, Sponsor and and, if such information is reasonably available to the Borrower, the Manager, as may be requested by the Rating Agencies or as may be reasonably requested by NACC, including, without limitation, audits or agreed- upon procedures of operating cash flow and Net Operating Income on an individual and aggregate Property basis, occupancy statistics, and average rents and quarterly and annual financial statements for each Property (reviewed and in the information set forth on Exhibit C attached heretocase of annual financial statements audited) by a firm of certified public accountants acceptable to NACC and the Rating Agencies to the extent customarily given in similar transactions;
(d) prepare and deliver such agreements and instruments relating to the Note, the Securities, the Properties and the Entities, including (A) agreements to indemnify the Rating Agencies, NACC and any servicer or trustee, to the extent customarily given in commercial mortgage-backed securities transactions, and (B) provide updated budgets amendments of any of the Transaction Documents that are necessary to effect the Securitization, in form and scope satisfactory to the Rating Agencies and reasonably satisfactory to NACC;
(e) perform or permit to be performed such appraisals, surveys, site inspections, market studies, current environmental reviews and reports (Phase I's, including, without limitation, testing for asbestos, lead paint or radon gas and Phase II's and other information environmental investigations recommended by environmental consultants), structural engineering reports (to extent required which shall include an analysis of requirements for deferred maintenance and ongoing capital expenditure and furniture, fixtures and equipment reserve requirements), reviews of property, casualty, business interruption, earthquake, flood, liability and title insurance and other due diligence items customarily requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained nationally recognized underwriters in connection with the origination and securitization of comparably sized commercial real estate loans or by the LoanRating Agencies in connection with rating the Loan or the Securities; provided, -------- however, NACC shall use its best efforts to limit the circumstances under which -------- the Borrower or the General Partner will be required to duplicate its efforts or third party costs in complying with its obligations under this clause (e);
(iif) provide (A) an updated Insolvency Opinion, business plans and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially budgets relating to the same Properties as those delivered as of the Closing Date, which opinions shall may be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and requested by the Rating Agencies;
(iiig) cause counsel to render opinions (Awhich may be reasoned opinions) confirm that as of with respect to the closing date of any Secondary Market TransactionProperties, the representations and warranties as set forth in the Loan Documents are trueEntities, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation Transaction Documents as to truthbankruptcy remoteness and other matters customary in securitization transactions, completeness and correctness shall which may be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as requested by 50 the Rating Agencies may customarily require; and
(iv) execute amendments in form and substance customary or required for Rating the Securities which counsel and which opinion shall be satisfactory to the Loan Documents Rating Agencies and the Loan Parties’ organizational documents requested by Lenderreasonably satisfactory to NACC; provided, however, that Borrower if the -------- ------- Rating Agencies request opinions subsequent to the Closing Date in connection with the Securitization that are materially different from the opinions delivered on the Closing Date, the Lender shall not bear the fees and expenses incurred by counsel in rendering such opinions;
(h) make such representations and warranties with respect to the Properties, the Entities, and the Transaction Documents as are customary in securitization transactions and as may be required to modify or amend any Loan Document if requested by the Rating Agencies and reasonably requested by NACC and consistent with the facts covered by such modification or amendment would (A) cause representations and warranties as they exist on the initial weighted average of date thereof, including the interest rates for all Components representations and warranties made in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Transaction Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:;
(i) if cooperate with the Lender reasonably determines in providing to the Rating Agencies such information as is customarily provided in connection with annual reviews conducted in commercial mortgage backed securities transactions similar to the Securitization;
(j) cooperate with NACC in the preparation, at NACC's cost, of a private placement memorandum, prospectus, prospectus supplement or other disclosure document to be used by NSI or any of its Affiliates to privately place or publicly distribute the Loan as a whole loan or the Securities in a manner and to the extent that the principal amount same satisfy the requirements of the Securities Act and applicable state securities laws; and
(k) subject to the provisions of Section 5.6(B), permit NACC to provide to the Rating Agencies, potential investors in the Securities and others as may be required to effect the Securitization or the sale of the Loan together with any Related Loansas a whole loan, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of information provided to NACC by the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties Borrower and the Related Properties for the most recent Fiscal Year Manager and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, their respective Affiliates in connection with the preparation of the Disclosure Documents transactions contemplated by this Agreement. Any and on an ongoing basisall due diligence materials (including without limitation appraisals, financial data and/or financial statements with respect engineering reports and environmental reports) shall be addressed to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant shall run to the Exchange Act in connection with or relating to benefit of NACC and its successors and assigns, the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders Rating Agencies and the Borrower, and shall, upon delivery, become the property of NACC, its successors and assigns and the Securities under Regulation AB or applicable Legal RequirementsBorrower.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Loan Agreement (Fairfield Inn by Marriott LTD Partnership)
Securitization. (a) Lender shall have the right (i) to assign, transfer, sell or otherwise transfer the Loan dispose of Lender’s right, title and interest in and to (including, without limitation, its obligations under) all or any portion thereof as a whole loanof the Loan and the Loan Documents, (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor Guarantor, Sponsor, Principal and the Manager, including, without limitation, (B) updated budgets relating to the information set forth on Exhibit C attached heretoProperty, and (BC) provide updated budgets appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other information (to extent required by investors or Rating Agencies) relating to due diligence investigations of the Properties Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance acceptable to Lender and the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware or Maryland (as applicable) and federal bankruptcy law relating to limited liability companies, true sale and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressedsatisfactory in form and substance to Lender and the Rating Agencies;
(iii) if required by any Rating Agency, for purposes use commercially reasonable efforts to deliver such additional Tenant estoppel letters, subordination agreements or reliance thereonother agreements from parties to agreements that affect the Property, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (includingwhich estoppel letters, without limitation, any “B Note” purchasers), subordination agreements or otherwise other agreements shall be reasonably satisfactory to Lender and the Rating Agencies;
(iiiiv) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and;
(ivv) execute such amendments to the Loan Documents, the Property Documents and Borrower’s or any Principal’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to provide for a non-economic “golden member” and/or “independent director” provisions, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan Parties’ organizational documents requested into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity (Aexcept as provided in subclause (C) cause above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate coupon of the original Components in Note.;
(vi) if requested by Lender, review any information regarding the aggregate immediately prior to such modificationProperty, (B) cause Borrower, Principal, the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of Manager and the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (other than repayment in full on the Maturity Dateincluding any amendment or supplement to either thereof), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower other disclosure document to be used by Lender or any Guarantor under the Loan Documentsaffiliate thereof; and
(vii) supply to Lender such documentation, financial statements and reports in form and substance required in order to comply with any applicable securities laws.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X))Intentionally omitted.
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.Intentionally omitted
Appears in 1 contract
Securitization. (a) Lender shall have the right (i) to Each of Operator and Borrower hereby -------------- acknowledges that Lender, its successors or assigns, may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion portions thereof in one or more transactions through the issuance of securities, which may be rated by the Rating Agencies (each, a single asset securitization "Securitization"; -------------- collectively, the "Securitizations"). Each of Operator and Borrower, --------------- respectively, agrees that it shall reasonably cooperate with Lender and use its best efforts to facilitate the consummation of each Securitization including, but not limited to, by (a) amending or causing the amendment of this Agreement, the documents evidencing the Class B Equity Interests and, if any, the Class C Equity Interests, the Mezzanine Loan Documents and the other Loan Documents, and executing such additional documents including amendments to Borrower's or Operator's organizational documents (provided such additional documents and amendments do not materially expand Borrower's or Operator's economic obligations hereunder) and preparing financial statements as requested by the Rating Agencies to conform the terms of the Loan to the terms of similar loans underlying completed or pending securitized transactions having or seeking ratings the same as those then being sought in connection with the relevant Securitization and; (b) promptly and reasonably providing such information as may be reasonably requested in connection with the preparation of a private placement memorandum or a pooled loan securitizationregistration statement required to privately place or publicly distribute the securities in a manner which does not conflict with federal or state securities laws. Operator, additionally agrees that it shall further reasonably cooperate with Lender by (The transactions referred to a) providing in clauses connection with each of (i), ) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus, as applicable, an indemnification certificate (iiix) are each hereinafter referred to certifying that Operator has carefully examined sections of the memorandum or prospectus, as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Managerapplicable, including, without limitation, the information set forth on Exhibit C attached heretosections entitled "Special Considerations," "Description of the Mortgage Loan" and "The Underlying Mortgaged Property," "The Operator," "Borrower" and "Certain Legal Aspects of the Mortgage Loan," and such sections (and any other sections reasonably requested) insofar as they relate to Borrower or Operator, their respective Affiliates, the Loan or the Facility do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, provided, however, that Operator shall not be required to indemnify Lender for any losses relating to untrue statements or omissions which Operator identified to Lender in writing at the time of Operator's examination of such memorandum or prospectus as applicable, and (By) provide updated budgets indemnifying Lender (and its officers, directors, partners, employees, affiliates and agents and each other information (to extent required by investors person, if any, controlling Lender or Rating Agencies) relating to any of its affiliates within the Properties (the “Updated Information”) which were obtained in connection with the origination meaning of either Section 15 of the Loan;
(ii) provide (A) an updated Insolvency OpinionSecurities Act of 1933, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counselas amended, substantially the same as those delivered as or Section 20 of the Closing DateSecurities Exchange Act of 1934, which opinions shall be addressedas amended), the Issuer and the Advisor for purposes any losses, claims, damages, costs, expenses or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction liabilities (including, without limitation, any “B Note” purchasersall liabilities under all applicable federal and state securities laws) (other than those relating to untrue statements or omissions which Operator identified to Lender in writing at the time of Operator's examination of the relevant portions of such prospectus or memorandum) (the foregoing liabilities for which Operator is responsible as described in this clause (y), collectively, the "Liabilities") to which ------ --- ----------- any of them may become subject (i) insofar as the Liabilities arise directly out of or otherwise reasonably satisfactory are based directly upon any untrue statement or alleged untrue statement of any material fact relating to Lender and Operator, Borrower, their respective Affiliates, the Rating Agencies;
(iii) (A) confirm that as Loan, the Facility, the Mezzanine Loan or any aspect of the closing date subject financing or the parties directly involved therein contained in such sections or arise out of any Secondary Market Transactionor are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as light of the closing date of the Secondary Market Transaction circumstances under which they were made, not misleading or (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct ii) as a result of subsequent events any untrue statement of material fact in any of the financial statements of Operator or Borrower incorporated into any placement memorandum, prospectus, registration statement or other document connected with the issuance of securities or the failure to include in such financial statements or in any placement memorandum, prospectus, registration statement or other document connected with the issuance of securities any material fact relating to Borrower, Operator, their respective Affiliates, the Facility, the Mezzanine Loan, the Loan, and any aspect of the subject financing necessary in order to make the statements therein, in light of the circumstances under which case Borrower they were made, not misleading; provided that Operator shall provide have had an updated representation opportunity to review and comment upon the relevant portions of such documents and Operator's comments thereon have been incorporated therein or warranty) otherwise addressed to Operator's reasonable satisfaction; and (Bz) make agreeing to reimburse Lender, the Issuer and the Advisor for any legal or other expenses reasonably incurred by Lender, the Issuer and the Advisor in connection with investigating or defending the Liabilities; (b) causing to be rendered such additional representations and warranties customary opinion letters as shall be reasonably requested by the Rating Agencies for other securitizations having or seeking ratings comparable to that then being sought for the relevant Securitization; (c) making such representations, warranties and covenants, as may customarily requirebe reasonably requested by the Rating Agencies and comparable to those required in other securitized transactions having or seeking the same rating as is then being sought for the Securitization; (d) providing such information regarding the Collateral as may be reasonably requested by the Rating Agencies or otherwise required in connection with the formation of a REMIC; and (e) providing any other information and materials required in the Securitization process. Subject to Lender's application of funds in the Securitization Expense Sub-Account, Operator agrees to pay on the Securitization Closing Date and
, if earlier, within thirty (iv30) execute amendments days after the incurrence thereof, within ten (10) calendar days following demand, all of Operator's pro rata share of reasonable out-of-pocket costs of Lender (and not previously reimbursed by Borrower or Operator) in connection with the Securitization (or any attempt to securitize the Loan Documents Loan), including, without limitation, the cost of preparing a private placement memorandum or prospectus, Rating Agency fees and expenses (including ongoing surveillance fees), legal fees and disbursements (including without limitation, in connection with the rendering of legal opinions), third party due diligence expenses, including appraisals, engineering reports and environmental reports, the fees and expenses of any trustee, servicer or special servicer, including any ongoing servicing or special servicing fees, and the Loan Parties’ organizational documents requested by Lender; cost of market studies and SEC filing fees (collectively, "Securitization Costs"), provided, however, that Borrower Operator's liability for Securitization Costs shall not be required to modify exceed the Initial Securitization Expense Amount. Each of Borrower and Operator acknowledges and agrees that the Lender may, at any time on or amend after the Closing Date, assign its duties, rights or obligations hereunder or under any Loan Document if such modification in whole, or amendment would (A) cause the initial weighted average of the interest rates for in part, to a servicer and/or a trustee in Lender's discretion. Nothing herein shall in any way limit Lender's right to sell all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization a portion of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document transaction which is being prepared for not a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. Subject to Countrywide receiving at least fifteen (a15) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loandays prior written notice, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” Countrywide and the transactions referred Purchasers agree that with respect to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes some or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising all of the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by LenderMortgage Loans, the related Purchaser may effect no more than three (3) Whole Loan Parties shall use reasonable efforts Transfers, and/or Pass-Through Transfers with respect to provide information in any particular Mortgage Loan Package. With respect to each Whole Loan Transfer or Pass-Through Transfer entered into by the possession or control of Borrower or its Affiliatesrelated Purchaser, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including Countrywide agrees to:
(i) (A) provide updated financial restate all representations and other information warranties made herein with respect to the PropertiesMortgage Loans as of the related Closing Date and with respect to Countrywide itself as of the Reconstitution Date;
(ii) reasonably cooperate with the related Purchaser with respect to all reasonable requests which have been made by such Purchaser by prior written notice, including providing such Purchaser and any supervisory agents or examiners access to any documentation regarding the Mortgage Loans required to be disclosed pursuant to any applicable regulations; provided however, any “out-of-pocket” costs or expenses in connection with the foregoing shall be solely borne by the related Purchaser;
(iii) reasonably negotiate in good faith customary pooling and servicing agreements or other agreements (the “Reconstitution Agreement”) provided that Countrywide is given an opportunity to review and reasonably negotiate in good faith the content of such documents and such documents do not impose any greater liability or less benefit to Countrywide than is provided in this Agreement; provided, however, if the related Purchaser transfers Mortgage Loans into a Pass-Through Transfer in accordance with this Agreement, Countrywide hereby agrees to service the Mortgage Loans in accordance with this Agreement and the following provisions:
(a) if the related Purchaser transfers Mortgage Loans into a Pass-Through Transfer in accordance with this Agreement and if periodic reports under the Securities Exchange Act of 1934 are required with respect to such Pass-Through Transfer, Countrywide shall cause the servicing officer in charge of servicing of Countrywide to execute and deliver a certification (the “Backup Certification”) in the form attached hereto as Exhibit E in connection with such Pass-Through Transfer, not later than March 15 of each calendar year following the first fiscal year of the trust related to such Pass-Through Transfer; provided that such Backup Certification shall no longer be required if periodic reports under the Securities Exchange Act of 1934 are no longer required with respect to such Pass-Through Transfer;
(b) if a REMIC election has been made and Countrywide has received written notification or otherwise has actual and verified knowledge thereof with respect to the Pass-Through Transfer under which the Mortgage Loans and REO Properties are held, Countrywide shall not take any action, cause the REMIC to take any action or fail to take (or fail to cause to be taken) any action that, under the REMIC Provisions, if taken or not taken, as the case may be, could (i) endanger the status of the REMIC as a REMIC or (ii) result in the imposition of a tax upon the REMIC (including but not limited to the tax on “prohibited transactions” as defined in Section 860(a)(2) of the Code and the tax on “contributions” to a REMIC set forth in Section 860(d) of the Code) unless Countrywide has received an Opinion of Counsel (at the expense of the party seeking to take such an action) to the effect that the contemplated action will not endanger such REMIC status or result in the imposition of any such tax;
(c) if the related Purchaser transfers Mortgage Loans into a publicly traded Pass-Through Transfer in accordance with this Agreement and if periodic reports under the Securities Exchange Act of 1934 are required with respect to such Pass-Through Transfer, in order to facilitate compliance with Regulation AB, the business operated at the Properties, Borrower, Sponsor Seller and the ManagerPurchaser agree to comply with the provisions of the Regulation AB Compliance Addendum attached hereto as Exhibit G;
(d) if the related Purchaser transfers Mortgage Loans into a Pass-Through Transfer in accordance with this Agreement and if the related Purchaser or one of its subsidiaries beneficially owns at least 100% of the most subordinate class of securities outstanding with respect to such Pass-Through Transfer, includingfor purposes of qualifying for exemption from the Investment Company Act pursuant to Section 3(c)(5)(C), without limitationCountrywide agrees to include in the related Reconstitution Agreement, a section relating to special foreclosure rights in the form of Exhibit F attached hereto to the extent required to comply with the requisite provisions of the Code related to real estate investment trusts;
(e) if the related Purchaser transfers Mortgage Loans into a Pass-Through Transfer in accordance with this Agreement and if the related Purchaser executes a confidentiality agreement acceptable to Countrywide, in the form of Exhibit H attached hereto, Countrywide agrees to make available to the related Purchaser on a monthly basis, the information set forth on in Exhibit C I, attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties performance of the Mortgage Loans (the “Updated InformationMonthly Report”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes provided that such action does not violate any applicable laws or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except agreements related to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as ownership and/or servicing of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Mortgage Loans, as of the cut-off date for such Securitization, determined by Countrywide in its sole discretion. Such information may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected be provided in a form convenient to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.Countrywide; and
(f) If the related Purchaser transfers Mortgage Loans into a Pass-Through Transfer in accordance with this Agreement, then at the election of such Purchaser, in the event that any payment due under any Mortgage Loan and not postponed is not paid when the same becomes due and payable, or in the event the related Mortgagor fails to perform any other covenant or obligation under such Mortgage Loan and such failure continues beyond any applicable grace period, Countrywide shall take such action, which action (notwithstanding anything contained herein or incorporated by reference to the contrary) may include but is not limited to effecting the sale of such Mortgage Loan on an as-is basis, as (1) Countrywide would undertake under similar circumstances with respect to a similar mortgage loan held for its own account for investment, (2) shall be consistent with accepted servicing practices, and (3) Countrywide shall determine prudently to be in the best interest of such Purchaser. Countrywide, on behalf of the Purchaser, may also, in its sole discretion, as an alternative to foreclosure, sell defaulted Mortgage Loans at fair market value to third parties, if Countrywide believes, in its sole and exclusive discretion, that such sale would maximize proceeds to such Purchaser with respect to each Mortgage Loan. Notwithstanding any other provision in this Agreement or otherwise, Countrywide shall have no liability to the Purchaser or any other party for Countrywide’s determination hereunder.
(iv) reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, cooperate with any other master servicer, trustee or additional financial statements, credit enhancement parties involved in a Pass-Through Transfer and reasonable requests of such parties to the extent not materially burdensome and to the extent such requests do not impose any materially greater liability or financial, statistical or operating information, as Lender shall reasonably determine less benefit to be required pursuant Countrywide than is provided in this Agreement; and
(v) deliver to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto the related Purchaser for inclusion in the prospectus or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lenderoffering material publicly available information regarding Countrywide.
Appears in 1 contract
Sources: Reconstituted Servicing Agreement (Luminent 2006-5)
Securitization. Borrower hereby acknowledges that Lender, any of its Affiliates, its successors or assigns, may securitize the Loan through the issuance of the Certificates, which will be rated by the Rating Agencies (the "Securitization"). Borrower agrees that it will cooperate fully with Lender and the Rating Agencies in connection with the Securitization, including, but not limited to, by (a) Lender shall have entering into nonmaterial amendments to the right Loan Documents to the extent required by the Rating Agencies or otherwise in connection with the Securitization; (b) assisting in the preparation of offering documents describing the Loan and the Securitization in a manner that satisfies the requirements of applicable federal and state securities laws, by (without limitation) (i) to sell or otherwise transfer the Loan or any portion thereof providing such information as a whole loan, may be requested in connection therewith and (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) acting reasonably and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued promptly in connection with a Secondary Market Transaction are hereinafter referred its review and approval of the relevant portions of the offering documents; (c) causing to be rendered such customary opinion letters as “Securities”). At Lender’s election, each note and/or component comprising the Loan may shall be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, an opinion letter in substantially the information set forth on form attached hereto as Exhibit C attached hereto, N (subject to changes in law or fact after the date hereof and (B) provide updated budgets and other information further subject to changes requested by the Rating Agencies (to the extent required by investors such changes are consistent with applicable law or Rating Agenciesfacts)) relating and an opinion letter from each real estate counsel to Borrower stating that the Properties (the “Updated Information”) which were obtained in connection with the origination assignment of the Loan;
(ii) provide (A) an updated Insolvency Opinion, Loan and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction Documents to Trustee is enforceable; (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iiid) (A) confirm representing that as of the closing date Securitization Closing Date (i) the Principal Indebtedness does not exceed 125% of the Tax Fair Market Value of the Mortgaged Property and (ii) the fair market value of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as personal property or other property that is part of the closing date Mortgaged Property that is not "qualifying real property" within the meaning of Treasury Regulation Section 1.593-11(b) does not exceed the excess, if any, of the Secondary Tax Fair Market Transaction (except to Value of the extent that Mortgaged Property over the Principal Indebtedness, and providing Lender with any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents supporting materials reasonably requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower at reasonable times and one or more Affiliates of Borrower collectivelyupon reasonable notice, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.showing potential Certificateholders the
Appears in 1 contract
Securitization. (a) Borrower acknowledges and agrees that Lender shall have the absolute and unconditional right (i) at any time after the date hereof and at any time during the term of the Loan without requiring any consent or approval from Borrower, any Loan Party or any other person guaranteeing the payment of the Debt or any other person, party or entity associated with or connected with the Loan or the Collateral to sell sell, assign, pledge, hypothecate or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any 's interest in the Loan in connection whole or in part, or to place one or more participation interests therein in one or more separate transactions, or to effect a syndication or securitization of the Loan in one or more transactions (a "Securitization"), in each case to or with any Secondary Market Transaction such persons, parties, entities or investors (including, without limitation, domestic or foreign banks, insurance companies, pension funds, trusts, other institutional lenders or investors, natural persons, grantor trusts, owner trusts, special purpose corporations, REMICs, FASITs, real estate investment trusts or other similar or comparable investment vehicles) (collectively or individually, "Investor") and on such terms and conditions as Lender shall deem to be appropriate in the exercise of its sole and absolute discretion; provided that Lender shall not participate or sell the Loan to any “B Note” purchasersPersons listed on Schedule 15.19 hereto. Neither Lender nor any Investor shall acquire the stock of Holdings in any manner prohibited by Applicable Law. In connection with any such sale, assignment, participation, syndication or securitization, Lender shall have the absolute and unconditional right without obtaining the prior consent or approval of any Loan Party or any other Person guaranteeing the payment of the Debt or any other Person associated or connected with the Loan or the Collateral (including the Borrower Group Members) to disclose, deliver and to share with any prospective purchaser of the Loan or of any securities or of any participation or other interest therein (including any such interest to be acquired in connection with a syndication or securitization of the Loan), or otherwise reasonably satisfactory with any prospective Rating Agency, or their respective counsel or representatives, such information (financial or otherwise), documents and instruments pertaining to Lender and the Rating Agencies;
Loan or any other person, party or entity associated or connected with the Loan or the Collateral (iiiincluding the Expanded Property Owners) (Acollectively, the "Disclosure Material and Information") confirm that as Lender shall deem to be appropriate in the exercise of its sole and absolute discretion. Borrower shall cooperate, and shall cause each Loan Party and each other Person, associated or connected with the Loan or the Collateral (including the Expanded Property Owners) to cooperate, in all reasonable respects with Lender in connection with any sale, assignment, participation, syndication or securitization of the closing date Loan or any interest therein by Lender pursuant to the provisions of this paragraph. Without in any manner implying the necessity therefor, Borrower grants to Lender, and shall cause each Loan Party and each other Person associated or connected with the Loan or the Collateral to specifically grant to Lender, the right to distribute any and all of the Disclosure Material and Information in connection with any sale, assignment, participation, syndication or securitization of the Loan or of any Secondary Market Transactioninterest therein by Lender pursuant to the provisions of this paragraph. Borrower shall execute and deliver, and shall cause each Loan Party and each other Person associated or connected with the representations Loan or the Collateral to execute and warranties deliver, such documents and instruments as may be reasonably necessary to (a) split the Loan into two or more loans evidenced by and pursuant to separate sets of notes and other related loan documents, or (b) to modify the terms and provisions of the Loan Documents, in each case to the full extent required by Lender to facilitate any sale, assignment, pledging, hypothecation, participation, syndication or securitization of the Loan or any interest therein by Lender pursuant to the provisions of this paragraph, it being agreed that (i) any such splitting or modification of the Loan will not adversely affect or diminish the rights of any Loan Party as presently set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall will not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights and liabilities of Borrower or any Guarantor Loan Party under the Loan Documents.
, and (cii) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is split, the retained interest of Lender, if any, in the Loan shall be allocated to or among one or more of such separate loans in a manner specified by Lender in its sole and absolute discretion. If Borrower shall default in the performance of its obligation as set forth in this paragraph, and if such default shall not treated as a non-recourse loan be remedied by Borrower within fifteen (15) days after notice by Lender, Lender shall have the absolute and unconditional right in its sole and absolute discretion to declare such default an Event of Default under Instruction 3 for Item 1101(k) this Agreement. Lender shall endeavor to provide notice to Borrower of Regulation ABany such assignment, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB)sale, or
(ii) if Lender reasonably determines that the principal amount participation, syndication or securitization of the Loan together with in a reasonably timely manner, but any Related Loans, as failure by Lender to provide notice to Borrower shall not give rise to any claim or defense on the part of any of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homesLoan Parties, or other properties that would be deemed to constitute a business and not real estate limit the rights of Lender under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, this Section 15.19 or the Properties alone Loan Documents. Until otherwise directed in writing by Lender following the occurrence of any such assignment, sale, participation, syndication or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lendersecuritization, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, continue to deliver all payments and deposits as Lender shall reasonably determine required prior to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lendersuch occurrence.
Appears in 1 contract
Securitization. Subject to Sections 11.7 and 18.14 hereof:
(a) Lender Administrative Agent shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by LenderAdministrative Agent, Borrower shall assist Administrative Agent in satisfying the Loan Parties shall use reasonable efforts market standards to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents which Administrative Agent customarily adheres or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including including, without limitation and to the extent customary and reasonable as provided in this sentence, to:
(i) provide (A) provide updated financial and other information reasonably available to Borrower with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor Mezzanine A Borrower, Mezzanine B Borrower, Guarantor, SPE Component Entity, Mezzanine A SPE Component Entity, Mezzanine B SPE Component Entity and the Manager, including, without limitation, (B) updated budgets relating to the information set forth on Exhibit C attached heretoProperty, and (BC) provide updated budgets appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other information (to extent required by investors or Rating Agencies) relating to due diligence investigations of the Properties Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel reasonably acceptable to Administrative Agent and acceptable to the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Administrative Agent and acceptable to the Rating Agencies;
(ii) to the extent such opinions were delivered to Lender in connection with the closing of the Loan (provided any such opinion was not waived by Administrative Agent with respect to the Loan), provide (A) an updated Insolvency Opinion, and (B) updated opinions of counsel, which may be relied upon by Administrative Agent, Lenders and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory in form and substance to Lender Administrative Agent and shall be satisfactory in form and substance to the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents (which representations and can only warranties may be made as of a specific date and the updated to reflect any change in facts and circumstances upon which since the Closing Date, provided that such representation change in facts and warranty circumstances is based are specific solely not due to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to Default by Borrower under the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily requireLoan Documents); and
(iv) execute such amendments to the Loan Documents, the Property Documents and Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Administrative Agent or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Manager provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan Parties’ organizational documents requested into two or more components and/or additional separate notes, re-allocating the Loan among existing components, reducing the number of components of the Loan, and/or creating additional separate notes and/or creating additional senior/subordinate note structure(s), including, without limitation, re-allocating the principal amounts and the LIBOR Spread, Alternate Rate Spread, and/or Prime Rate Spread (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document or organizational document if such modification or amendment would shall impose a Secondary Market Adverse Change on the Borrower or Guarantor. The term “Secondary Market Adverse Change” means (Ai) cause either Borrower’s or Guarantor’s liabilities or obligations under the initial weighted average of Loan Documents are increased, or Borrower’s or Guarantor’s rights under the interest rates for all Components Loan Documents are decreased, in the aggregate immediately after the effective date of such modification to exceed either case in any material respect (although change in the weighted average interest rate described in clause (ii) below shall not be deemed to increase any such liability or decrease any such rights in any material respect), (ii) any change in the weighted average interest rate (whether before or after the time of the original Components in the aggregate immediately prior to such modificationproposed Loan Bifurcation or New Mezzanine Loan) (other than as a result of (x) payments and recoveries after an Event of Default and/or (y) application of proceeds following a Casualty or Condemnation), (Biii) cause any change to the outstanding principal balance of all Components stated Maturity Date (other than as described in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, clause (C) require Borrower to make or remake above) and/or (iv) any representations or warranties, (D) require principal change that would affect the amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsLoan.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Securitization. (a) Notwithstanding anything set forth herein to the contrary, and without limiting the generality of the foregoing, Lender shall have the right (i) to sell or otherwise transfer securitize the Loan (or any portion thereof as or interest therein) in a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan commercial mortgage backed securitization or any portion thereof in a single asset securitization other public offering or a pooled loan securitization. private placement (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”), and Borrowers shall reasonably cooperate with Lender in effecting any such Securitization (without cost or expense to Borrowers (provided, however, that Borrowers shall be responsible for attorney’s fees incurred by Borrowers in excess of $25,000.00)). Any certificates, notes Borrowers authorize Lender to disclose to any actual or other prospective participant or transferee of the Loan (or any investor in such securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Securitization or any rating agency rating such securities) any and all financial and other information then in Lender’s electionpossession concerning the Property, each note and/or component comprising the Loan may be subject to one Borrower Control Persons and their respective Affiliates, or more Secondary Market Transactions.
(b) the Loan. If requested by Lender, whether prior to, on or following the Loan Parties Closing Date, Borrowers shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements any rating agency to be included in any loan documentation and/or disclosure documentation or otherwise in the marketplace in connection with any Secondary Market Transactionssuch Securitization. Without limiting the foregoing, including to:
if Lender reasonably deems it necessary to satisfy the market standards to which Lender customarily adheres or that may be reasonably required in the marketplace or by any rating agency in connection with any such Securitization, Borrowers shall deliver to Lender revised organizational documents for the Borrowers and/or Managing Member that provide for one (i1) or more Independent Managers. Borrowers shall indemnify Lender (Aand its Affiliates) provide updated financial and other in connection with any material misstatement or material omission in the offering materials for such Securitization provided that such disclosure is based on information with respect delivered by any Borrower Control Person to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required Administrative Agent and/or Lender. Lender shall reimburse Borrowers for all actual documented out-of-pocket attorney’s fees actually incurred by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Borrowers in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lenderforegoing; provided, however, that Borrower Lender shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average reimburse Borrowers for attorney’s fees in excess of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents$25,000.00.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Loan Agreement (GTJ Reit, Inc.)
Securitization. Borrower hereby acknowledges that Lender, any of its Affiliates, its successors or assigns, may securitize the Loan through the issuance of the Certificates, which will be rated by the Rating Agencies (the "Securitization"). Borrower agrees that it will cooperate fully with Lender and the Rating Agencies in connection with the Securitization including, but not limited to, by (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” amending this Agreement and the transactions referred to in clause (iii) shall hereinafter be referred to other Loan Documents, and executing such additional documents, as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in provided that any such amendment (or additional documentation) does not materially adversely affect the marketplace in connection with any Secondary Market Transactionsrights, including to:
or materially increase the obligations, of Borrower under the Loan Documents; (ib) (A) provide updated financial and other information with respect to reviewing the Properties, portion of the business operated at offering documents describing the PropertiesLoan, Borrower, Sponsor and the Individual Properties, Manager, including, without limitation, the information set forth on Exhibit C attached heretosections entitled "Special Considerations", and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination "Description of the Mortgage Loan;
(ii) provide (A) an updated Insolvency Opinion" and "The Underlying Mortgaged Properties", "The Manager", "The Borrower" and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as "Certain Legal Aspects of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring Mortgage Loan" (and any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise other sections reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Daterequested), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will providing such information as may be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of a private placement memorandum or a registration statement required to privately place or publicly distribute the Disclosure Documents Certificates in a manner which does not conflict with federal or state securities laws by (i) providing such information as may be requested in connection therewith and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1(ii) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor acting reasonably and either (x) filings pursuant to the Exchange Act promptly in connection with its review and approval of the relevant portions of the offering documents; (d) causing to be rendered an opinion letter in substantially the form attached hereto as Exhibit P (subject to changes in law or relating fact after the date hereof and further subject to changes reasonably requested by the Rating Agencies (to the extent such changes are consistent with applicable law or facts)) and an opinion letter from each real estate counsel to Borrower in substantially the form attached hereto as Exhibit U (subject to changes in law or fact after the date hereof); and (e) re-making the representations and warranties contained in the Loan Documents as of the Securitization Closing Date, modified to reflect any changes in knowledge, fact or law. Borrower agrees to pay its pro rata share (based on the percentage of the aggregate loan amount included in the Securitization represented by the principal amount of this Loan) of the reasonable third party fees and expenses in connection with the Securitization, including, but not limited to, legal fees and disbursements, third-party due diligence expenses, Rating Agency fees and expenses, the costs of providing appraisals, environmental reports and engineering reports as required by the Rating Agencies, and any servicing, Trustee or special servicing fees and expenses, provided, however, that the expenses to be reimbursed by Borrower shall not exceed 0.875% of the portion of the Loan Amount included in such Securitization. In connection with the Securitization, Lender intends to use the Engineering Reports and the Environmental Reports, updated as necessary due to the age of such Reports, to the extent permitted by the Rating Agencies. On or prior to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by LenderClosing Date, Borrower shall provide Lenderexecute and deliver to Lender an instrument substantially in the form attached hereto as Exhibit GG (subject, within a however, to such reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, changes as Lender or the Rating Agencies shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lenderrequest).
Appears in 1 contract
Sources: Loan Agreement (Forum Group Inc)
Securitization. (a) Each Borrower hereby acknowledges that each Lender shall have the right (i) to with a Term Loan and each of its Affiliates and Related Funds may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Term Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Term Loan as collateral security for loans to such Lender or its Affiliates or Related Funds or through the sale of the Term Loan or the issuance of direct or indirect interests in the Term Loan, notes which loans to such Lender or its Affiliates or Related Funds or direct or indirect interests will be rated by ▇▇▇▇▇’▇, S&P’s or one or more other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as rating agencies (the “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising Each Borrower agrees to cooperate with such Lenders and their Affiliates and Related Funds to effect the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, the information set forth on Exhibit C attached heretoby (a) executing such additional documents, and (B) provide updated budgets and other information (to extent required as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Lenders in connection with the origination of the Loan;
Securitization, provided that (i) any such additional documentation does not impose material additional costs on Borrowers, and (ii) provide any such additional documentation does not materially adversely affect the rights, or increase the obligations, of such Borrower under the Loan Documents or change or affect in a manner adverse to such Borrower the financial terms of the Term Loan, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by such Lenders in connection with the rating of the Term Loan or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Term Loan, a certificate (including, without limitationi) agreeing to indemnify such Lenders and any of their Affiliates and Related Funds, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (Athe “Securitization Liabilities”) confirm that to which such Lenders or any of their Affiliates or Related Funds, or such Securitization Parties, may become subject insofar as the Securitization Liabilities arise out of or are based upon a breach of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date contained in which case confirmation as to truthSection 4.15, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender agreeing to reimburse such Lenders and their Affiliates and Related Funds, and such Securitization Parties, for any legal or other expenses reasonably determines that incurred by such Persons in connection with defending the principal amount of Securitization Liabilities. Notwithstanding the Loan together with any Related Loansforegoing, as of this Section 2.17 is subject to Agent’s and the cut-off date for such SecuritizationRequired Lenders’ rights and obligations under Sections 13 and 14 hereof in all respects and, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) event of Regulation AB (which includes, but may not be limited to, a balance sheet direct conflict between this Section 2.17 and any provision of Section 13 or 14 with respect to Agent’s and the entity that Lender determines to be a Significant Obligor for Required Lenders’ rights and obligations, it is the two most recent Fiscal Years and applicable interim periods, meeting intent of the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines parties that the Properties is the Significant Obligor applicable provision of Section 13 or 14 shall control and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X))govern.
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Lender shall have The Loan Parties hereby acknowledge that the right (i) to Lenders and their Affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, notes which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by ▇▇▇▇▇’▇, Standard & Poor’s or one or more other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as rating agencies (the “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the The Loan Parties shall use their commercially reasonable efforts to provide information in cooperate with the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order Lenders and their Affiliates to satisfy effect the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination Securitization, provided that (i) any such amendment or additional documentation does not impose additional costs on the Loan Parties (other than costs of the Loan;
a de minimis nature) and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or increase the obligations (Aother than increases of a de minimis nature), of the Loan Parties under the Loan Documents or change or affect in a manner adverse to the Loan Parties the financial terms of the Loans, (b) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iii) (A) confirm that as of the closing date of any Secondary Market Transactioncollectively, the representations and warranties as set forth in “Securitization Parties”) for any losses, claims, damages or liabilities (the Loan Documents are true“Liabilities”) to which the Lenders, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except their Affiliates or such Securitization Parties may become subject to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations the Liabilities arise out of or are no longer true and correct as a result based upon any untrue statement or alleged untrue statement of subsequent events any material fact contained in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause in any writing delivered by or on behalf of any Loan Party to the initial weighted average Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components circumstances under which they were made, not misleading in any material respect, and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Lenders or their successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower Loans and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Financing Agreement (OTG EXP, Inc.)
Securitization. (a) Lender shall have The Borrower hereby acknowledges that the right (i) to -------------- Lenders and any of their Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral security for -------------- loans to such Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to such Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the Loan Parties "Rating ------ Agencies"). The Borrower shall use reasonable efforts cooperate with such Lenders and their Affiliates -------- to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, the information set forth on Exhibit C attached hereto, and by (Ba) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party amending this Agreement and the other conditions set forth in Rule 3-14 of Regulation S-X have been metLoan Documents, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Furtherand executing such additional documents, if as reasonably requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to LenderLenders, in connection with the preparation Securitization, provided that (i) any such amendment or additional documentation does not impose -------- ---- material additional costs on the Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Disclosure Borrower under the Loan Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity change or entities are affect in a Significant Obligor and either (x) filings pursuant manner adverse to the Exchange Act in connection with or relating to Borrower the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders financial terms of the Securities under Regulation AB or applicable Legal Requirements.
Loans, (eb) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, providing such information as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise may be reasonably requested by Lendersuch Lenders, in connection with the rating of the Loans or the Securitization, (c) providing in connection with any rating of the Loans, a certificate (i) agreeing to indemnify such Lenders and any of their Affiliates, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization (collectively, the "Securitization Parties") for any losses, claims, damages or liabilities (the "Liabilities") to which such Lenders, their ----------- Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of the Borrower and its Affiliates to the Lender Group in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and such indemnity shall survive any transfer by such Lenders or their successors or assigns of the Loans and (ii) agreeing to reimburse such Lenders and any of their Affiliates and other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Liabilities; and (d) providing such information regarding and its Subsidiaries and Affiliates, the Collateral and other property, assets and business of the Borrower (including appraisals and valuations) as may be reasonably requested by such Lenders or their successors or assignees.
Appears in 1 contract
Securitization. (a) Lender shall have The Loan Parties hereby acknowledge that the right (i) to Senior Lenders and their Affiliates may sell or otherwise transfer securitize the Loan Senior Loans (a "Securitization") through the pledge of the Senior Loans as collateral security for loans to the Senior Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Senior Loans or the issuance of direct or indirect interests in the LoanSenior Loans, which loans to the Senior Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by Moody's, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the "▇▇▇▇▇▇ Agencies"). The Loan Parties shall use reasonable efforts cooperate with the Senior Lenders and their Affiliates to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Senior Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Loan Parties and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Loan Parties under the Loan Documents or change or affect in a manner adverse to the Loan Parties the financial terms of the Senior Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Senior Lenders in connection with the rating of the Senior Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Senior Loans a certificate (including, without limitationi) agreeing to indemnify the Senior Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "Securitization Parties") for any losses, claims, damages or liabilities (Athe "Liabilities") confirm that to which the Senior Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause in any writing delivered by or on behalf of any Loan Party to the initial weighted average Senior Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Senior Lenders or their successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower Senior Loans and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with Senior Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
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Securitization. (a) Lender shall have The Borrower hereby acknowledges that the right (i) to Lenders and their Affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, notes which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by ▇▇▇▇▇’▇, Standard & Poor’s or one or more other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as rating agencies (the “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising The Borrower shall cooperate with the Loan may be subject Lenders and their Affiliates to one or more Secondary Market Transactions.
(b) If requested by Lender, effect the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Borrower and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan Documents or change or affect in a manner adverse to the Borrower the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (Athe “Liabilities”) confirm that to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause in any writing delivered by or on behalf of any Loan Party to the initial weighted average Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Lenders or their successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower Loans and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Lender shall have the right (i) to sell Borrower hereby acknowledges that Lender, any of its Affiliates, its successors or otherwise transfer the Loan or any portion thereof as a whole loanassigns, (ii) to sell participation interests in the Loan, or (iii) to may securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i)through the issuance of the Certificates, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter which will be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested rated by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection . Borrower agrees that it will cooperate fully with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor Lender and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Agencies in connection with the origination Securitization, including, but not limited to, by (a) entering into nonmaterial amendments to the Basic Documents to the extent required by the Rating Agencies or otherwise in connection with the Securitization; (b) assisting in the preparation of offering documents describing the Loan;
Loan and the Securitization in a manner that satisfies the requirements of applicable federal and state securities laws, by (without limitation) (i) providing such information as may be requested in connection therewith and (ii) provide (A) an updated Insolvency Opinion, acting reasonably and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan promptly in connection with any Secondary Market Transaction its review and approval of the relevant portions of the offering documents; (c) causing to be rendered such customary opinion letters (including, without limitation, with respect to substantive nonconsolidation) as shall be requested by the Rating Agencies, and an opinion letter from each real estate counsel to Borrower stating that the assignment of the Loan and the Basic Documents to Trustee is enforceable; (d) representing that as of the Securitization Closing Date (i) the Tax Fair Market Value of each Collateral Property is equal to or greater than the Allocated Loan Amount for such Collateral Property and (ii) the aggregate Tax Fair Market Value of the Collateral Properties is equal to or exceeds the Principal Indebtedness, and providing Lender with any “B Note” purchasers)supporting materials reasonably requested by Lender; (e) re-making the representations and warranties contained in the Basic Documents as of the Securitization Closing Date; and (f) obtaining a comfort letter from a nationally recognized accounting firm in connection with financial information relating to Borrower or the Collateral Properties which is presented in the offering documents. Borrower agrees that Lender shall have the right in its sole discretion in connection with the Securitization to replace the Administrative Agent with the Servicer (or any entity which acts as a sub-servicer) under the Pooling and Servicing Agreement. Borrower agrees to pay its pro rata share of third party fees and expenses in connection with the Securitization, including, but not limited to, legal fees and disbursements, accounting fees, third-party due diligence expenses, Rating Agency fees and expenses, the costs of providing appraisals, environmental reports and engineering reports as required by the Rating Agencies, Lender's out-of-pocket costs and any servicing, Trustee or otherwise special servicing fees and expenses. On the Closing Date, Borrower shall pay to Lender the sum of $100,000, which shall be held by Lender and applied to the first $100,000 of Borrower's pro rata share of the costs described above; and if the aggregate amount of the costs are less than $100,000, then any excess shall be returned to Borrower. In connection with the Securitization, Lender intends to use the engineering and environmental reports provided for in Section 6.01, updated as necessary due to the age of such reports, to the extent permitted by the Rating Agencies. Lender shall provide Borrower with an itemized ▇▇▇▇ of the expenses for which it seeks reimbursement from Borrower. On or prior to the Securitization Closing Date, Borrower shall execute and deliver to Lender an instrument (in form and substance reasonably satisfactory to Lender and the Rating Agencies;
Borrower) indemnifying and holding Lender and its controlling Persons and Affiliates harmless against all costs, expenses and damages incurred by Lender and its controlling Persons and Affiliates (iiiincluding, without limitation, all liabilities under all applicable federal and state securities laws) (A) confirm that as of the closing date a direct result of any Secondary Market Transactionuntrue statement of a material fact contained in such offering documents based on information provided by, or on behalf of, Borrower which describes Borrower, the representations and warranties as set forth in General Partner, the Loan Documents are trueLessee, complete and correct in all material respects as of the closing date of REIT, the Secondary Market Transaction Collateral Properties (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truthmanagement thereof) or any aspect of this Loan, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events any untrue statement of material fact in which case Borrower shall provide an updated representation any of the financial statements of Borrower, the General Partner, the Lessee or warrantythe REIT incorporated into the offering documents or the failure to include in such financial statements or in such offering documents any material fact relating to Borrower, the General Partner, the Lessee, the REIT, the Collateral Properties (and the management thereof) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to any aspect of the Loan Documents and necessary in order to make the Loan Parties’ organizational documents requested by Lenderstatements therein, in light of the circumstances under which they were made, not misleading; provided, however, that Borrower shall not be required have had an opportunity to modify or amend any Loan Document if such modification or amendment would (A) cause review and shall have approved the initial weighted average relevant portions of the interest rates offering documents. Borrower shall not indemnify Lender for all Components any liability, loss, cost or expense incurred as a result of the inclusion of any erroneous or misleading information in the aggregate immediately after offering documents, or the effective date omission of material information from the offering documents, pertaining to Borrower, the General Partner, the Lessee, the REIT, the Collateral Properties (and the management thereof) or any aspect of this Loan, if Borrower or its counsel shall have previously indicated in writing to Lender or its counsel the erroneous or misleading nature of such modification to exceed information or the weighted average interest rate omission of material information, as the case may be. Borrower shall not indemnify Lender for any liability, loss, cost or expense incurred as a result of the original Components inclusion of any erroneous or misleading information in the aggregate immediately prior offering documents, or the omission of material information from the offering documents, unrelated to such modificationBorrower, the General Partner, the REIT, the Lessee, the Collateral Properties (Band the management thereof) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part aspect of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Guarantor, Sponsor, SPE Component Entity and Manager (provided, that, such financial information with respect to Sponsor and Guarantor shall, unless otherwise agreed to by Borrower, be in the Managersame format as delivered to Lender in connection with the closing of the Loan), including, without limitation, (B) updated budgets relating to the information set forth on Exhibit C attached heretoProperty, and (BC) provide updated budgets appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other information (to extent required by investors or Rating Agencies) relating to due diligence investigations of the Properties Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of counsel, which may be relied upon by ▇▇▇▇▇▇, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest satisfactory in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory form and substance to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily reasonably require; and
(iv) execute such amendments to the Loan Documents, the Property Documents and Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan Parties’ organizational documents requested into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (A1) cause the initial weighted average of change the interest rates for all Components in rate, the stated maturity or the amortization of principal set forth herein, (2) change the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components the Loan, (3) alter the restrictions on transfers of equity interests in Borrower or transfers of the Property, in each case, as set forth herein, (4) alter any limitations of Borrower’s recourse obligations under the Loan as contained herein or (5) alter any other material obligation, right or privilege of Borrower under the Loan Documents (other than to a de minimis extent or except, in the aggregate immediately after the effective date case of such modification to exceed the outstanding principal balance each of all Components (1) through (5) above, (y) as provided in the aggregate immediately prior to such modification, subsection (C) require Borrower to make or remake any representations or warrantiesabove and (z) in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, (D) require principal amortization but which shall have the same initial weighted average coupon of the Loan (other than repayment in full on the Maturity Dateoriginal Note), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties Property alone or the Properties Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) the selected financial data or, if Lender reasonably determines applicable, net operating income, required under Item 1112(b)(1) of Regulation AB, if ▇▇▇▇▇▇ expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, net operating income for or (ii) the Properties and the Related Properties for the most recent Fiscal Year and interim period as financial statements required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k1112(b)(2) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender . Such financial data or financial statements meeting the requirements of Item 1112(b)(1shall be furnished to Lender (A) or within fifteen (215) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Business Days after notice from Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and on an ongoing basis(C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data and/or or financial statements pursuant to clauses (B) or (C) of this sentence with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only any period for so long as such entity or entities are which a Significant Obligor and either (x) filings filing pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) is not required. If requested by ▇▇▇▇▇▇, Borrower shall furnish to Lender financial data and/or financial statements for any tenant of the Property if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(d) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP or the income tax basis of accounting (unless GAAP or another accounting method is required by Regulation AB (to the extent applicable) or otherwise required by Legal Requirements (to the extent applicable), and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section shall be audited by independent accountants of Borrower acceptable to Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be made provided. All financial data and statements (audited or unaudited) provided by Borrower under applicable Legal Requirements or this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirementsd).
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender▇▇▇▇▇▇, Borrower shall provide Lender, within a reasonable period of time following Lender’s request thereforpromptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, AB or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements as Lender determines to be necessary or appropriate for such compliance.
Appears in 1 contract
Sources: Loan Agreement (Clipper Realty Inc.)
Securitization. The Borrower hereby acknowledges that the Lenders and their Affiliates may sell or securitize the Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by Moody's, Standard Po▇▇'▇ ▇▇ one or more other rating agencies (the "Rating Agencies"). The Borrower shall cooperate with the Lenders and their Affiliates to effect the Securitization including, without limitation, by (a) Lender amending this Agreement and the other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan Documents or change or affect in a manner adverse to the Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loans a certificate (i) agreeing to indemnify the Lenders and their Affiliates, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization (collectively, the "Securitization Parties") for any losses, claims, damages or liabilities (the "Liabilities") to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall have survive any transfer by the right Lenders or their successors or assigns of the Loans and (ii) agreeing to reimburse the Lenders and their Affiliates for any legal or other expenses reasonably incurred by such Persons in connection with defending the Liabilities. [SIGNATURES BEGIN NEXT PAGE] BORROWER: GULFWEST OIL GAS COMPANY By:__\s\ Thomas R. Kaetzer Thomas R. Kaetzer President ADMINISTRATIVE AGENT: HIGHBRIDGE/ZWIRN SPECIAL OPPORTUNITIES FUND, L.P., as Administrative Agent By: \s\ D. B. Zwirn Co., L.P. ▇▇▇▇▇▇: HIGHBRIDGE/ZWIRN SPECIAL OPPORTUNITIES FUND, L.P. By: D.B. Zwirn Co., L.P. Address: 745 5th Avenue, 18th F▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Morris W. Macleod Telecopy: (212) 287-4263 LENDER: DRAWBRIDGE SPECIAL OPPORTUNITIES FUND LP By: \s\ Drawbridge Special Opportunities GP LLC Address: 1251 Avenue of the Americas Suite 1600 ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: Telecopy: JOINDER BY Setex Oil Gas Company Setex Oil Gas Company, a Texas corporation, hereby joins in the execution of this Credit Agreement to evidence its acknowledgment and agreement (i) to sell or otherwise transfer undertake to perform all obligations which under the Loan terms of the Agreement or any portion thereof as a whole loanother Loan Document Borrower is required to cause Operator to perform, (ii) not to sell participation interests in do any action which the LoanBorrower under the terms of the Agreement or any other Loan Document is obligated not to permit Operator to do, or (iii) to securitize Agent's right to terminate the Contract Operating Agreement between the Borrower and Operator as provided in Sections 8.06(i) and 10.02(d), and (iv) to not amend, modify, restate or change in any fashion the Contract Operating Agreement. Note Setex Oil Gas Company, is not a party to the Agreement and is no way liable for or responsible for the payment of any Loans that are or maybe in the future outstanding under the Agreement; its joinder hereby is solely for the purposes set forth above in this paragraph and no other. Setex Oil Gas Company By: \s\ Thomas R. Kaetzer Thomas R. Kaetzer President Address for Notices: Setex Oil Gas Company 4801 N. Sam Houston Pk▇▇. ▇. ▇▇▇▇▇ 300 Houston, Texas 77060 Attention of Thomas R. Kaetzer Telecopy No. 281-260-8488 Annex I ANNEX I LIST OF MAXIMUM CREDIT AMOUNTS Aggregate Maximum Credit Amounts Name of Lender Applicable Maximum Percentage Credit Amount Drawbridge Special Opportunities Fund LP 50% $9,000,000 Highbridge/Zwirn Special Opportun▇▇▇▇▇ Fund, L.P. 50% $9,000,000 TOTAL 100.00% 18,000,000 Exhibit B EXHIBIT A FORM OF AMEDED AND RESTATED NOTE $18,000,000 April 27, 2004 FOR VALUE RECEIVED, GulfWest Oil Gas Company, a Texas corporation (the "Borrower"), hereby promises to pay to the order of [ ] (the "Lender"), at the principal office of Highbridge/Zwirn Special Opport▇▇▇▇▇es Fund, L.P. (the "Administrative Agent"), at 745 Fifth Avenue, 18t▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇f EIGHTEEN MILLION Dollars ($18,000,000), in lawful money of the United States of America and in immediately available funds, on the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the unpaid principal amount of each such Loan, at such office, in like money and funds, for the period commencing on the date of such Loan until such Loan shall be paid in full, at the rates per annum and on the dates provided in the Credit Agreement. The date and amount of the Loan made by the Lender to the Borrower, and each payment made on account of the principal thereof, shall be recorded by the Lender on its books and, prior to any transfer of this Amended and Restated Note, may be endorsed by the Lender on the schedules attached hereto or any portion continuation thereof or on any separate record maintained by the Lender. Failure to make any such notation or to attach a schedule shall not affect any Lender's or the Borrower's rights or obligations in a single asset securitization respect of such Loans or a pooled loan securitizationaffect the validity of such transfer by any Lender of this Amended and Restated Note. (The transactions This Amended and Restated Note is one of the Notes referred to in clauses the Credit Agreement dated as of April 27, 2004 among the Borrower, the Administrative Agent, and the other agents and lenders signatory thereto (iincluding the Lender), and evidences Loans made by the Lender thereunder (ii) such Credit Agreement as the same may be amended, supplemented or restated from time to time, the "Credit Agreement"). Capitalized terms used in this Amended and (iii) are each hereinafter referred Restated Note have the respective meanings assigned to as a “Secondary Market Transaction” them in the Credit Agreement. This Amended and Restated Note is issued pursuant to the Credit Agreement and is entitled to the benefits provided for in the Credit Agreement and the transactions referred other Loan Documents. The Credit Agreement provides for the acceleration of the maturity of this Amended and Restated Note upon the occurrence of certain events, for prepayments of Loans upon the terms and conditions specified therein and other provisions relevant to this Amended and Restated Note. This Amended and Restated Note represents a renewal, rearrangement and modification to that certain Amended and Restated Advancing Note dated effective as of April 5, 2000, made by Borrower in clause the stated original amount of $36,102,000 (iii) "Prior Note"). All collateral given to secure the Prior Note shall hereinafter be referred also secure this Amended and Restated Note. THIS AMENDED AND RESTATED NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. GULFWEST OIL GAS COMPANY By: \s\ Thomas R. Kaetzer Name: Thomas R. Kaetzer Title: President EXHIBIT B FORM OF BORROWING REQUEST _________, 200__ GulfWest Oil Gas Company, a Texas corporation (the "Borrower"), pursuant to Section 2.03 of the Credit Agreement dated as a “Securitization”. Any certificates-------- of April 27, notes 2004 (together with all amendments, restatements, supplements or other securities issued in connection with a Secondary Market Transaction modifications thereto, the "Credit Agreement") among the Borrower, Highbridge/Zwirn Special Opportu▇▇▇▇▇s Fund, L.P., as Administrative Agent and the other agents and lenders (the "Lenders") that are hereinafter referred to as “Securities”). At Lender’s electionor become parties thereto (unless otherwise defined herein, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information capitalized term used herein is defined in the possession or control of Borrower or its AffiliatesCredit Agreement), attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including tohereby requests a Borrowing as follows:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination ______Aggregate amount of the Loanrequested Borrowing is $18,000,000;
(ii) provide (A) an updated Insolvency Opinion_____Date of such Borrowing is [ ], and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;2004; and
(iii) (A) confirm ___Location and number of the Borrower's account to which funds are to be disbursed, which shall comply with the requirements of Section 2.04 of the Credit Agreement, is as follows: [-----------------] [-----------------] [-----------------] [-----------------] [-----------------] The undersigned certifies that he/she is the [ ] of the Borrower, and that as such he/she is authorized to execute this certificate on behalf of the closing date Borrower. The undersigned further certifies, represents and warrants on behalf of any Secondary Market Transactionthe Borrower that the Borrower is entitled to receive the requested Borrowing under the terms and conditions of the Credit Agreement. GULFWEST OIL GAS COMPANY By: Name: Title: Exhibit D EXHIBIT D FORM OF COMPLIANCE CERTIFICATE The undersigned hereby certifies that he/she is the [ ] of GulfWest Oil Gas Company, a Texas corporation (the "Borrower"), and that as such he/she is authorized to execute this certificate on behalf of the Borrower. With reference to the Credit Agreement dated as of April 27, 2004 (together with all amendments, restatements, supplements or other modifications thereto being the "Agreement") among the Borrower, Highbridge/Zwirn Special Opport▇▇▇▇▇es Fund, L.P. as Administrative Agent, and the other agents and lenders (the "Lenders") that are or become a party thereto, and such Lenders, the undersigned represents and warrants as follows (each capitalized term used herein having the same meaning given to it in the Agreement unless otherwise specified):
(a) ______The representations and warranties as set forth of the Borrower contained in ARTICLE VII of the Agreement and in the Loan Documents and otherwise made in writing by or on behalf of the Borrower pursuant to the Agreement and the Loan Documents were true and correct when made, and are true, complete repeated at and as of the time of delivery hereof and are true and correct in all material respects at and as of the closing date time of the Secondary Market Transaction (delivery hereof, except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely expressly limited to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific an earlier date or the Lenders have expressly consented in writing to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; andcontrary.
(ivb) execute amendments to ______The Borrower has performed and complied with all agreements and conditions contained in the Agreement and in the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify be performed or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately complied with by it prior to such modification, (B) cause or at the outstanding principal balance time of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make delivery hereof [or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documentsspecify default and describe].
(c) If______Since [same date as audited financials in Section 7.04(a)], at no change has occurred, either in any case or in the time a Disclosure Document is being prepared for a Securitizationaggregate, Lender reasonably determines that Borrower alone in the condition, financial or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part otherwise, of the Loan) collectively, Borrower or the Properties alone or the Properties and Related Properties collectively, will any Subsidiary which could reasonably be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as have a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal Material Adverse Effect [or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X))specify event].
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data ______There exists no Default or financial statements meeting the requirements Event of Item 1112(b)(1) Default [or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents specify Default and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirementsdescribe].
(e) If Lender determines that ______Attached hereto are the detailed computations necessary to determine whether the Borrower alone is in compliance with Section 9.01 and Section 8.14 as of the end of the [fiscal quarter][fiscal year] ending [ ]. EXECUTED AND DELIVERED this [ ] day of [ ]. GULFWEST OIL GAS COMPANY By: Name: Title: EXHIBIT E-1 FORM OF LEGAL OPINION OF [ ] EXHIBIT E-2 FORM OF LEGAL OPINION OF LOCAL COUNSEL [ ] [ ], 2004 as Administration Agent Re: Credit Agreement dated as of April ___, 2004 among GulfWest Oil Gas Company, a ______________ corporation (the "Borrower"), the banks now or Borrower hereafter signatory thereto (the "Lenders"), and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB[ ], as specified by Lenderadministrative agent for the Lenders (in such capacity the "Administrative Agent"), but only and other agents for so long as such entity or entities are a Significant Obligor and either the Lenders (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements"Credit Agreement").
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) The Loan Parties hereby acknowledges that the Lender shall have the right (i) to and any of its Affiliates may sell or otherwise transfer securitize the Loan Loans (a "SECURITIZATION") through the pledge of the Loans as collateral security for loans to the Lender or any portion thereof as a whole loan, (ii) to sell participation its Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lender or (iii) to securitize the Loan its Affiliate or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the "RATING AGENCIES"). The Loan Parties shall use reasonable efforts cooperate with the Lender and its Affiliates to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lender in connection with the origination of Securitization, PROVIDED THAT (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Loan Parties and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Loan Parties under the Loan Documents or change or affect in a manner adverse to the Loan Parties the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lender in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lender and any of its Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "SECURITIZATION PARTIES") for any losses, claims, damages or liabilities (Athe "LIABILITIES") confirm that to which the Lender, its Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make any writing delivered by or remake any representations or warranties, (D) require principal amortization on behalf of the Loan (other than repayment Parties to the Lender in full on connection with any Loan Document or arise out of or are based upon the Maturity Date)omission or alleged omission to state therein a material fact required to be stated therein, (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise necessary in order to make payments on all or a part the statements therein, in light of the Loan) collectivelycircumstances under which they were made, not misleading and such indemnity shall survive any transfer by the Lender or the Properties alone its successors or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount assigns of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties Loans and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if agreeing to reimburse the Lender reasonably determines that the principal amount and any of the Loan together with its Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Financing Agreement (Innovative Clinical Solutions LTD)
Securitization. (a) Lender shall have The Loan Parties hereby acknowledge that the right (i) Lenders and their Affiliates may seek to sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the "Rating Agencies"). The Loan Parties shall use provide reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect cooperation to the Properties, Lenders and their Affiliates to effect the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose additional costs (other than de minimus out-of-pocket expenses) on the Loan;
Loan Parties and (ii) provide any such amendment or additional documentation does not adversely affect the rights, or increase the obligations, of the Loan Parties under the Loan Documents or change or affect in a manner adverse to the Loan Parties the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s hereby agreeing (i) to indemnify the Lenders and Guarantors’ New York and Delaware counseltheir Affiliates, substantially the same as those delivered as any of the Closing DateRating Agencies, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest party providing credit support in the Securitization (collectively, the "Securitization Parties") for any losses, claims, damages or liabilities (the "Liabilities") to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lenders in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers)Loan Document or arise out of or are based upon the omission to state therein a material fact required to be stated therein, or otherwise reasonably satisfactory necessary in order to Lender and make the Rating Agencies;
(iii) (A) confirm that as statements therein, in light of the closing date of circumstances under which they were made, not misleading, and such indemnity shall survive any Secondary Market Transaction, transfer by the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as Lenders or their successors or assigns of the closing date of the Secondary Market Transaction (except to the extent that any such representations Loans and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that to reimburse the principal amount of the Loan together with Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. Borrower hereby acknowledges that each Lender (aa “Securitizing Lender”) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to may securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Obligations (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”) through the pledge of the Obligations as collateral security for loans to such Securitizing Lender or its Affiliates or Related Funds or through the sale of the Obligations or the issuance of direct or indirect interests in the Obligations, which loans to such Securitizing Lender or its Affiliates or Related Funds or direct or indirect interests will be rated by Moody’s, S&P or one or more other rating agencies (the “Rating Agencies”). Any certificatesBorrower agrees to cooperate with such Securitizing Lender and its Affiliates and Related Funds to effect the Securitization includi▇▇, notes ▇▇▇hout limitation, by (a) executing such additional documents, as reasonably requested by such Securitizing Lender in connection with the Securitization; provided that (i) any such additional documentation does not impose material additional costs on such Borrower, and (ii) any such additional documentation does not materially adversely affect the rights, or other securities issued increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of any of the Obligations, and (b) providing such information as may be reasonably requested by such Securitizing Lender in connection with the rating of any of the Obligations or the Securitization. Notwithstanding anything contained in this Agreement to the contrary, expenses in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, Securitization incurred by each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of conducting a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower Securitization shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documentsconstitute Lender Group Expenses.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Lender shall have Each Borrower hereby acknowledges that the right (i) to Lenders and each of their Affiliates may sell or otherwise transfer securitize the Loan Borrowings (a "Securitization") through the pledge of the Borrowings as collateral security for loans to such Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Borrowings or the issuance of direct or indirect interests in the LoanBorrowings, which loans to such Lenders or (iii) to securitize the Loan their Affiliate or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by Moody's, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the Loan Parties "▇▇▇▇▇▇ Agencies"). Each Borrower shall use reasonable efforts cooperate with such Lenders and their Affiliates to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose costs on Borrowers and the Loan;
Lender that elects to securitize its Borrowings shall pay for costs and expenses associated therewith, and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrowers under the Loan Documents or change or affect in a manner adverse to Borrowers the financial terms of the Borrowings, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by such Lenders in connection with the rating of the Borrowings or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Borrowings a certificate (including, without limitationi) agreeing to indemnify such Lenders and any of their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "Securitization Parties") for any losses, claims, damages or liabilities (Athe "Liabilities") confirm that to which such Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause in any writing delivered by or on behalf of Borrowers or its Affiliates to the initial weighted average Lender Group in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in the aggregate immediately after the effective date of circumstances under which they were made not misleading, and such modification to exceed the weighted average interest rate indemnity shall survive any transfer by any Lender or its successors or assigns of the original Components in the aggregate immediately prior to such modificationBorrowings, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount agreeing to reimburse such Lenders and any of the Loan together with their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. Borrowers hereby acknowledge that each Lender (aa “Securitizing Lender”) Lender shall have the right (i) to and each of its Affiliates and Related Funds may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Term Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Term Loan as collateral security for loans to such Securitizing Lender or its Affiliates or Related Funds or through the sale of the Term Loan or the issuance of direct or indirect interests in the Term Loan, notes which loans to such Securitizing Lender or its Affiliates or Related Funds or direct or indirect interests will be rated by ▇▇▇▇▇’▇ Investors Service, Inc., Standard & Poor’s Rating Group or one or more other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as rating agencies (the “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising Each Borrower agrees to reasonably cooperate with such Securitizing Lender and its Affiliates and Related Funds to effect the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoOther Documents and executing such additional documents, and (B) provide updated budgets and other information (to extent required as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Securitizing Lender in connection with the origination of the Loan;
Securitization; provided, that (i) any such additional documentation does not impose material additional costs on such Borrower, and (ii) provide any such additional documentation does not materially and adversely affect the rights or increase the obligations of such Borrower under this Agreement or the Other Documents or change or affect in a manner material and adverse to such Borrower the financial terms of the Term Loan, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by such Securitizing Lender in connection with the rating of the Term Loan or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Term Loan a certificate (including, without limitationi) agreeing to indemnify such Securitizing Lender and any of its Affiliates and Related Funds, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (Athe “Securitization Liabilities”) confirm that to which such Securitizing Lender or any of its Affiliates or Related Funds, or such Securitization Parties, may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement of any material fact contained in this Agreement or any Other Document or in any writing delivered by or on behalf of any Borrower to the Lenders in connection with this Agreement or any Other Document, taken as a whole, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the closing date of circumstances under which they were made and taken as a whole, not misleading, and such indemnity shall survive any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as transfer by such Securitizing Lender or its successors or assigns of the closing date of the Secondary Market Transaction (except to the extent that any such representations Term Loan, and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if agreeing to reimburse such Securitizing Lender reasonably determines that the principal amount of the Loan together with any and its Affiliates and Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-XFunds, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lendersuch Securitization Parties, for any Tenant of the Properties if, legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities. Notwithstanding the foregoing, no such Securitization by a SecuritizationSecuritizing Lender shall release such Securitizing Lender from any of its obligations hereunder or substitute any pledgee, Lender reasonably determines there secured party or any other party to be, as of the cutoff date such Securitization for such Securitization, Securitizing Lender as a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirementsparty hereto.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Term Loan and Security Agreement (Empeiria Acquisition Corp)
Securitization. (a) Lender shall have Borrower hereby acknowledges that the right (i) to Lenders and any of their Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the such Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to such Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the Loan Parties "Rating Agencies"). Borrower shall use undertake reasonable efforts to provide information with such Lenders and their Affiliates (such Lenders and the Affiliates, together with any of the Rating Agencies and any party providing credit support or otherwise participating in the possession or control of Borrower or its AffiliatesSecuritization, attorneys, accountants or other agents or which may be reasonably required by Lender in order collectively the "Securitization Parties") to satisfy help them as they effect the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, the information set forth on Exhibit C attached hereto, and by (Ba) provide updated budgets and other information (negotiating in good faith to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party consider amending this Agreement and the other conditions set forth Loan Documents, and negotiating in Rule 3-14 of Regulation S-X have been metgood faith to consider executing such additional documents, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if as reasonably requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to LenderLenders, in connection with the preparation Securitization, provided that (i) any such amendment or additional documentation does not impose additional costs on Borrower and (ii) any such amendment or additional documentation does not adversely affect the rights, or increase the obligations, of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Disclosure Documents and on an ongoing basisLoans, financial data and/or financial statements with respect to (b) providing such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, information as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise may be reasonably requested by Lendersuch Lenders, in connection with the rating of the Loans or the Securitization, and (c) providing such information regarding Borrower and its Subsidiaries and Affiliates, the Collateral and other property, assets and business of Borrower (including appraisals and valuations) as may be reasonably requested by such Lenders or their successors or assignees without the imposition of additional costs to Borrower. Notwithstanding the foregoing, it is understood that Borrower and its Affiliates shall not be obligated to incur any increased cost, administrative burden or increased obligation in connection with any Securitization.
Appears in 1 contract
Sources: Credit Agreement (Avado Brands Inc)
Securitization. (a) Each Borrower hereby acknowledges that each Lender shall have the right (i) to and each of its Affiliates and Related Funds may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Term Loan or any portion thereof in a single asset securitization or a pooled loan securitization. B (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”) through the pledge of the Term Loan B as collateral security for loans to such Lender or its Affiliates or Related Funds or through the sale of the Term Loan B or the issuance of direct or indirect interests in the Term Loan B, which loans to such Lender or its Affiliates or Related Funds or direct or indirect interests will be rated by ▇▇▇▇▇’▇, S&P or one or more other rating agencies (the “Rating Agencies”). Any certificatesEach Borrower agrees to cooperate with such Lenders and their Affiliates and Related Funds to effect the Securitization by (a) executing such additional documents, notes as reasonably requested by such Lenders in order to effect the Securitization, provided that (i) any such additional documentation does not impose additional costs or other securities issued liabilities on Borrowers, and (ii) any such additional documentation does not adversely affect the rights, or increase the obligations, of such Borrower under the Loan Documents or change or affect in a manner adverse to such Borrower the financial terms of the Term Loan B or add more restrictive covenants or defaults, (b) providing such written information as may be reasonably requested by such Lenders in connection with the rating of the Term Loan B or the Securitization, and (c) providing in connection with any rating of the Term Loan B a Secondary Market Transaction are hereinafter referred certificate (i) agreeing to as “Securities”). At Lender’s electionindemnify such Lenders and any of their Affiliates and Related Funds, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control any of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or or any party providing credit support or otherwise participating in the marketplace Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which such Lenders or any of their Affiliates or Related Funds, or such Securitization Parties, may become subject insofar as the Securitization Liabilities arise out of or are based upon a breach of the representation and warranty contained in Section 4.18, and (ii) agreeing to reimburse such Lenders and their Affiliates and Related Funds, and such Securitization Parties, for any legal or other expenses reasonably incurred by such Persons in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in defending the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Credit Agreement (Sitel Corp)
Securitization. (a) Borrower acknowledges and agrees that Lender shall have the right may, at its sole cost and expense other than as set forth in Section 11.1(g) hereof, (i) to sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any portion thereof as a whole loanof the Loan and the Loan Documents, (ii) to sell participation interests in the Loan, Loan or (iii) to securitize consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the Loan “Securities”) secured by or evidencing ownership interests in all or any portion thereof in a single asset securitization of the Loan and the Loan Documents or a pooled loan securitization. pool of assets that include the Loan and the Loan Documents (The the transactions referred to in clauses (i), (ii) ), and (iii) above are each hereinafter herein referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by LenderL▇▇▇▇▇, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy the satisfying customary market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor and the Guarantor, SPE Component Entity, Manager, including, without limitationthe Management Agreements, the information set forth on Exhibit C attached heretoProperty Documents, the Ground Leases, the PILOT Leases, the PILOT Documents and any Tenant, (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property, (C) updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of counsel, which may be relied upon by L▇▇▇▇▇, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute such amendments to the Loan Documents Documents, the Property Documents, and B▇▇▇▇▇▇▇’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into (I) one or more participations or (II) one or more component and/or additional separate notes and/or creating additional senior/subordinate note structure(s) and reallocating the principal amount of the Loan and the Spread among such components and/or notes evidencing the Loan Parties’ organizational documents requested (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average require amortization of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed Loan, change the weighted average interest rate of Spread or the original Components stated maturity (except as provided in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, subclause (C) above) (it being agreed that that the weighted average Spread may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan in excess of the Free Prepayment Amount and (y) any applications to principal during the continuance of an Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or reallocation shall require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date)Loan, (Eiii) change there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the form of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any Stated Maturity Date amendment which increases Borrower’s or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor Guarantor’s liability under the Loan DocumentsDocuments in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, at all times the weighted average Interest Rate of all components of the Loan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any prepayment of the Loan in excess of the Free Prepayment Amount and (y) any applications to principal during the continuance of an Event of Default.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties Property alone or the Properties Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (without duplication and to the following financial information:
extent not previously provided) (i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB, if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, net operating income for or (ii) the Properties and the Related Properties for the most recent Fiscal Year and interim period as financial statements required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k1112(b)(2) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender . Such financial data or financial statements meeting the requirements of Item 1112(b)(1shall be furnished to Lender (A) or within ten (210) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Business Days after notice from Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and on an ongoing basis(C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data and/or or financial statements pursuant to clauses (B) or (C) of this sentence with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only any period for so long as such entity or entities are which a Significant Obligor and either (x) filings filing pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) is not required. If requested by L▇▇▇▇▇, Borrower shall furnish to Lender financial data and/or financial statements for any tenant of the Property (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(d) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section shall be audited by Deloitte, Ernst & Young, RSM McGladrey, B▇▇▇▇ N▇▇▇▇▇ N▇▇▇▇, PwC or other independent certified public accountant reasonably approved by Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be made provided. All financial data and statements (audited or unaudited) provided by Borrower under applicable Legal Requirements or this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirementsd).
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by LenderL▇▇▇▇▇, Borrower shall provide Lender, within a reasonable period of time following Lender’s request thereforpromptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, AB or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender, in each case, to the extent reasonably available to Borrower.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements as Lender determines to be necessary or appropriate for such compliance, in each case, to the extent reasonably available to Borrower.
(g) All reasonable out-of-pocket third-party costs and expenses incurred by B▇▇▇▇▇▇▇ and Guarantor in connection with Borrower’s compliance with requests made under this Article 11 (including any documentary stamp, intangible or other mortgage taxes) and any fees and expenses of the Rating Agencies incurred in connection with a syndication and/or Securitization of the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. In addition, Borrower and Guarantor shall be responsible for the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to requests made pursuant to Section 11.1, Section 11.2, and Section 11.6.
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Securitization. (a1) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “"Secondary Market Transaction” Transactions" and the transactions referred to in clause (iii) shall hereinafter be referred to as a “"Securitization”". Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “"Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions".
(b2) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(ia) provide (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor Guarantor, Sponsor, SPE Component Entity and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated budgets relating to the Property, (C) updated appraisals, market studies, environmental reviews (Phase I's and, if appropriate, Phase II's), property condition reports and other due diligence investigations of the Property (the "Updated Information"), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of Borrower’s counsel acceptable to Lender and Guarantors’ New York the Rating Agencies and Delaware counsel, substantially (D) revisions to and other agreements with respect to the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest Property Documents in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory form and substance acceptable to Lender and the Rating Agencies;
(iiib) (A) confirm that provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of the closing date of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market TransactionTransactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower's Affiliates, which counsel and opinions shall be satisfactory in form and substance to Lender and the representations and warranties as set forth in the Loan Documents are trueRating Agencies;
(c) provide updated, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(ivd) execute such amendments to the Loan Documents, the Property Documents and Borrower's or any SPE Component Entity's organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in LOAN AGREEMENT – Page 103 41458-110/JANAF Shopping Yard (VA) each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan Parties’ organizational documents requested into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a "Loan Bifurcation") and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity (Aexcept as provided in subclause (C) cause above) or the amortization of principal set forth herein, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate coupon of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsNote.
(c3) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties Property alone or the Properties Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB, if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, net operating income for or (ii) the Properties and the Related Properties for the most recent Fiscal Year and interim period as financial statements required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k1112(b)(2) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender . Such financial data or financial statements meeting the requirements of Item 1112(b)(1shall be furnished to Lender (A) or within ten (210) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Business Days after notice from Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and on an ongoing basis(C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data and/or or financial statements pursuant to clauses (B) or (C) of this sentence with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only any period for so long as such entity or entities are which a Significant Obligor and either (x) filings filing pursuant to the Exchange Act in connection with or relating to the Securitization (an “"Exchange Act Filing”") is not required. If requested by Lender, Borrower shall furnish to Lender financial data and/or financial statements for any tenant of the Property (to the extent Borrower is in possession of such information or can reasonably obtain from such tenant) if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(4) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation AB and other LOAN AGREEMENT – Page 104 41458-110/JANAF Shopping Yard (VA) applicable legal requirements. All financial statements referred to in this Section shall be audited by independent accountants of Borrower acceptable to Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as "experts" in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be made provided. All financial data and statements (audited or unaudited) provided by Borrower under applicable Legal Requirements or this Section shall be accompanied by an Officer's Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirementsd).
(e5) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request thereforpromptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, AB or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender.
(6) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of this Section, Lender may reasonably request, and Borrower shall promptly provide, such other financial data and financial statements as Lender determines to be necessary or appropriate for such compliance.
Appears in 1 contract
Sources: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Securitization. (a) Lender shall have The Loan Parties hereby -------------- acknowledge that the right (i) to Lenders and their Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral -------------- security for loans to the Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the "Rating Agencies"). The Loan Parties shall use reasonable efforts cooperate with the Lenders --------------- and their Affiliates to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment -------- ---- or additional documentation does not impose material additional costs on the Loan;
Loan Parties and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Loan Parties under the Loan Documents or change or affect in a manner adverse to the Loan Parties the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "Securitization -------------- Parties") for any losses, claims, damages or liabilities (Athe "Liabilities") confirm that ------- ----------- to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause in any writing delivered by or on behalf of any Loan Party to the initial weighted average Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Lenders or their successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower Loans and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Financing Agreement (Solutia Inc)
Securitization. (a) The Borrower hereby acknowledges that the Lender shall have the right (i) to and any of its Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the Lender or any portion thereof as a whole loan, (ii) to sell participation its Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lender or (iii) to securitize the Loan its Affiliate or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by Mood▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes ▇▇andard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the "Rating Agencies, applicable Legal Requirements and/or otherwise in "). The Borrower shall cooperate with the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial Lender and other information with respect its Affiliates to effect the Properties, the business operated at the Properties, Borrower, Sponsor and the ManagerSecuritization, including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as requested by investors or the Lender, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization (collectively, "Securitization Parties"), provided that (i) relating any such amendment or additional documentation does not impose material additional costs on the Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan Documents or change or affect in a manner adverse to the Properties Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the “Updated Information”) which were obtained Lender, any Rating Agency or other Securitization Party in connection with the origination rating of the Loan;
Loans or the Securitization, (iic) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans, as applicable, a certificate (includingi) certifying that the Borrower has examined specified sections of the Credit Review Memorandum prepared by the Lender with respect to the Loans, without limitationand that such sections of the Credit Review Memorandum do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, any “B Note” purchasers)in the light of the circumstances under which they were made, or otherwise reasonably satisfactory not misleading, (ii) agreeing to indemnify the Lender and any of its Affiliates and other Securitization Parties for any losses, claims, damages or liabilities (the Rating Agencies;
"Liabilities") to which the Lender, its Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in such sections or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and such indemnity shall survive any transfer by the Lender or its successors or assigns of the Loans and (iii) agreeing to reimburse the Lender and any of its Affiliates and other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Liabilities; (Ad) confirm that causing to be rendered such customary opinion letters as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to requested by the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as Lender, the Rating Agencies may customarily requireor other Securitization Parties; and
(ive) execute amendments making such representations, warranties and covenants with respect to the Loan Documents Parties, and the Loan Parties’ organizational documents their property, as may be requested by Lender; providedthe Rating Agencies or other Securitization Parties, howeverbut which do not materially adversely affect the rights, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause materially increase the initial weighted average obligations, of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor other Loan Parties under the Loan Documents.
; and (cf) If, at providing such information regarding the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one its Subsidiaries and Affiliates or more Affiliates other Loan Parties, the Collateral and other property, assets and business of the Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loanappraisals and valuations) collectively, or the Properties alone or the Properties and Related Properties collectively, will as may be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Rating Agencies and other Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsParties.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Financing Agreement (Tri State Outdoor Media Group Inc)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Guarantor, Sponsor, SPE Component Entity and Manager (provided, that, such financial information with respect to Sponsor and Guarantor shall, unless otherwise agreed to by Borrower, be in the Managersame format as delivered to Lender in connection with the closing of the Loan), including, without limitation, (B) updated budgets relating to the information set forth on Exhibit C attached heretoProperty, and (BC) provide updated budgets appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other information (to extent required by investors or Rating Agencies) relating to due diligence investigations of the Properties Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest satisfactory in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory form and substance to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily reasonably require; and
(iv) execute such amendments to the Loan Documents, the Property Documents and Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan Parties’ organizational documents requested into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (A1) cause the initial weighted average of change the interest rates for all Components in rate, the stated maturity or the amortization of principal set forth herein, (2) change the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components the Loan, (3) alter the restrictions on transfers of equity interests in Borrower or transfers of the Property, in each case, as set forth herein, (4) alter any limitations of Borrower’s recourse obligations under the Loan as contained herein or (5) alter any other material obligation, right or privilege of Borrower under the Loan Documents (other than to a de minimis extent or except, in the aggregate immediately after the effective date case of such modification to exceed the outstanding principal balance each of all Components (1) through (5) above, (y) as provided in the aggregate immediately prior to such modification, subsection (C) require Borrower to make or remake any representations or warrantiesabove and (z) in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, (D) require principal amortization but which shall have the same initial weighted average coupon of the Loan (other than repayment in full on the Maturity Dateoriginal Note), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties Property alone or the Properties Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB, if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, net operating income for or (ii) the Properties and the Related Properties for the most recent Fiscal Year and interim period as financial statements required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k1112(b)(2) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender . Such financial data or financial statements meeting the requirements of Item 1112(b)(1shall be furnished to Lender (A) or within fifteen (215) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Business Days after notice from Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and on an ongoing basis(C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data and/or or financial statements pursuant to clauses (B) or (C) of this sentence with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only any period for so long as such entity or entities are which a Significant Obligor and either (x) filings filing pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) is not required. If requested by Lender, Borrower shall furnish to Lender financial data and/or financial statements for any tenant of the Property if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(d) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP or the income tax basis of accounting (unless GAAP or another accounting method is required by Regulation AB (to the extent applicable) or otherwise required by Legal Requirements (to the extent applicable), and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section shall be audited by independent accountants of Borrower acceptable to Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be made provided. All financial data and statements (audited or unaudited) provided by Borrower under applicable Legal Requirements or this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirementsd).
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request thereforpromptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, AB or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements as Lender determines to be necessary or appropriate for such compliance.
Appears in 1 contract
Sources: Loan Agreement (Clipper Realty Inc.)
Securitization. In addition to any other assignment permitted pursuant to this Section, Loan Parties hereby acknowledge that (ax) the Lenders, their Affiliates and Approved Funds (“Lender shall have the right (iParties”) to may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Loans as collateral security for loans to a Lender Party or the assignment or issuance of direct or indirect interests in the Loans (such as, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”for instance, collateralized loan obligations). At Lender’s election, each note and/or component comprising the Loan and (y) such Securitization may be subject to one or more Secondary Market Transactions.
(b) If requested rated by Lender, the a rating agency. The Loan Parties shall use reasonable efforts reasonably cooperate with the Lender Parties to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of the Loan;
Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on Borrower and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of Borrower under the Loan Exhibit A to FirstFourth Amendment #37466145 Documents or change or affect in a manner adverse to Borrower the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders or rating agencies in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counselproviding a certificate (i) agreeing to indemnify the Lender Parties, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest party providing credit support or otherwise participating in the Securitization, including any investors in a securitization entity (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which the Lender Parties or such Securitization Parties may become subject insofar as the Securitization Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to the Lender Partiers in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers)Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or otherwise reasonably satisfactory necessary in order to Lender and make the Rating Agencies;
(iii) (A) confirm that as statements therein, in light of the closing date of circumstances under which they were made, not misleading, and such indemnity shall survive any Secondary Market Transaction, transfer by the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as Lenders or their successors or assigns of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if agreeing to reimburse the Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party Parties and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, Securitization Parties for any Tenant of the Properties if, legal or other expenses reasonably incurred by such Persons in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in defending the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Credit Agreement (Independence Contract Drilling, Inc.)
Securitization. (a) Lender shall have The Borrower hereby acknowledges that the right (i) to Lenders and their Affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”) through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by M▇▇▇▇’▇, Standard & Poor’s or one or more other rating agencies (the “Rating Agencies”). Any certificatesThe Borrower shall cooperate with the Lenders and their Affiliates to effect the Securitization including by (a) amending this Agreement and the other Loan Documents, notes or other securities issued and executing such additional documents, as reasonably requested by the Lenders in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s electionthe Securitization; provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, each note and/or component comprising or materially increase the obligations, of the Borrower under the Loan may be subject Documents or change or affect in a manner adverse to one or more Secondary Market Transactions.
the Borrower the financial terms of the Loans, (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide providing such information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which as may be reasonably required requested by Lender the Lenders in order connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loans a certificate (i) agreeing to satisfy indemnify the market standards to which Lender customarily adheres or which may be required in the marketplaceLenders and their Affiliates, by prospective investors, any of the Rating Agencies, applicable Legal Requirements and/or or any party providing credit support or otherwise participating in the marketplace Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Liabilities”) to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to any Agent or Lender in connection with any Secondary Market TransactionsLoan Document or arise out of or are based upon the omission to state therein a material fact required to be stated therein, including to:
or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans and (iii) (A) provide updated financial and other information with respect agreeing to reimburse the PropertiesAgents, the business operated at the Properties, Borrower, Sponsor Lenders and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and their Affiliates for any legal or other information (to extent required expenses reasonably incurred by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Persons in connection with defending the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsLiabilities.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Financing Agreement (Spheris Inc.)
Securitization. (a) Lender shall have the right (i) to Borrower hereby acknowledges that Lender, its successors or assigns, may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion portions thereof in one or more transactions through the issuance of securities, which may be rated by the Rating Agencies (each, a single asset securitization "Securitization"; collectively, the "Securitizations"). Borrower agrees that at its sole cost and expense, it shall reasonably cooperate with Lender and use its best efforts to facilitate the consummation of each Securitization including, but not limited to, by (a) amending or causing the amendment of this Agreement and the other Loan Documents, and executing such additional documents including amendments to Borrower's organizational documents and preparing financial statements as reasonably requested by the Rating Agencies to conform the terms of the Loan to the terms of similar loans underlying completed or pending securitized transactions having or seeking ratings the same as those then being sought in connection with the relevant Securitization, provided, however, that any such amendment or additional documents shall not change the economic terms of the Loan; (b) promptly and reasonably providing such information as may be reasonably requested in connection with the preparation of a private placement memorandum or a pooled loan securitization. registration statement required to privately place or publicly distribute the securities in a manner which does not conflict with federal or state securities laws; (The transactions referred to c) providing in clauses connection with each of (i), ) a preliminary and a private placement memorandum or (ii) a preliminary and final prospectus, as applicable, an indemnification certificate (iiix) are each hereinafter referred to certifying that Borrower has carefully examined such memorandum or prospectus, as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Managerapplicable, including, without limitation, the information set forth on Exhibit C attached heretosections entitled "Special Considerations", "Description of the Mortgage Loan and "The Underlying Mortgaged Property", "The Manager", "Borrower" and "Certain Legal Aspects of the Mortgage Loan", and such sections (Band any other sections reasonably requested) provide updated budgets and other information (insofar as they relate to extent required by investors Borrower, its Affiliates, the Loan or Rating Agencies) relating the Facility do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the Properties (statements made, in the “Updated Information”) which were obtained in connection with the origination light of the Loan;
(ii) provide (A) an updated Insolvency Opinioncircumstances under which they were made, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counselnot misleading, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify indemnify Lender for any losses relating to untrue statements or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components omissions which Borrower identified to Lender in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, writing at the time a Disclosure Document is being prepared for a Securitizationof Borrower's examination of such memorandum or prospectus as applicable, and (y) indemnifying Lender reasonably determines that Borrower alone (and its officers, directors, partners, employees, affiliates and agents and each other person, if any, controlling Lender or Borrower and one or more Affiliates any of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part its affiliates within the meaning of either Section 15 of the LoanSecurities Act of 1933, as amended, or Section 20 of the Securities Exchange Act of 1934, as amended), the Issuer and the Advisor for any losses, claims, damages, expenses 39 44 or liabilities (including, without limitation, all liabilities under all applicable federal and state securities laws) (collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish "Liabilities") to Lender upon request the following financial information:
which any of them may become subject (i) if Lender reasonably determines that insofar as the principal amount Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact relating to Borrower, its Affiliates, the Loan, the Facility, the Manager or any aspect of the Loan together with any Related Loanssubject financing or the parties directly involved therein contained in such sections or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, as in light of the cut-off date for such Securitizationcircumstances under which they were made, may equal not misleading or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount as a result of the Loan together with any Related Loans, as untrue statement of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) material fact in any of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required of Borrower incorporated into any placement memorandum, prospectus, registration statement or other document connected with the issuance of securities or the failure to include in such financial statements or in any placement memorandum, prospectus, registration statement or other document connected with the issuance of securities any material fact relating to Borrower, its Affiliates, the Facility, the Loan, the Manager and any aspect of the subject financing necessary in order to make the statements therein, in light of the circumstances under Item 1112(b)(2which they were made, not misleading; provided that Borrower shall have had an opportunity to review and comment upon the relevant portions of such documents; and (z) of Regulation AB (which includesagreeing to reimburse Lender, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor Issuer and the Properties (other than properties that are hotels, nursing homes, Advisor for any legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party expenses reasonably incurred by Lender, the Issuer and the other conditions set forth Advisor in Rule 3-14 of Regulation S-X have been met, connection with investigating or defending the financial statements required by Rule 3-14 of Regulation S-X)).
Liabilities; (d) Further, if causing to be rendered such customary opinion letters as shall be reasonably requested by Lenderthe Rating Agencies for other securitizations having or seeking ratings comparable to that then being sought for the relevant Securitization; (e) making such representations, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation ABwarranties and covenants, as specified may be reasonably requested by Lender, the Rating Agencies and comparable to those required in other securitized transactions having or seeking the same rating as is then being sought for any Tenant of the Properties if, in connection with a Securitization, Lender ; (f) providing such information regarding the Collateral as may be reasonably determines there to be, as of requested by the cutoff date for such Securitization, a concentration with respect to such Tenant Rating Agencies or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, otherwise required in connection with the preparation formation of a REMIC and (g) providing any other information and materials required in the Securitization process. Borrower acknowledges and agrees that the Lender may, at any time on or after the Closing Date, assign its duties, rights or obligations hereunder or under any Loan Document in whole, or in part, to a servicer and/or a trustee in Lender's discretion. Nothing herein shall in any way limit Lender's right to sell all or a portion of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are Loan in a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information transaction which is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirementsnot a Securitization.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” Borrower and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties General Partner shall use commercially reasonable best efforts to provide information in cooperate with the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained its activities in connection with the origination sale of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same Loan as those delivered as a whole loan or any securitization of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in Loan (the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers"Securitization"), or otherwise reasonably satisfactory to Lender and including obtaining ratings by the Rating Agencies;
(iii) (A) confirm that as . The Securitization will involve the issuance of the closing date of any Secondary Market Transaction, the representations and warranties as set forth rated single- or multi-class securities secured by or evidencing ownership interests in the Loan Documents are true, complete (the "Certificates"). The Borrower acknowledges and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lenderagrees that, in connection with the preparation of Securitization, (a) this Agreement, the Disclosure Mortgage Note, the Security Documents and on an ongoing basisthe other Loan Documents may be assigned, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act assignment, to a trustee (the "Trustee"), as trustee under a trust and servicing agreement (the "Trust and Servicing Agreement") in connection with or relating form substantially similar to those commonly used in rated commercial mortgage-backed securities offerings and (b) pursuant to the Trust and Servicing Agreement, a professional loan servicer of recognized standing (the "Servicer") would be appointed to service the Loan, this Agreement and the Loan Documents as provided therein. The addresses of the Trustee and the Servicer will be provided to the Borrower and the Ground Lessors in writing before the Securitization is consummated. Upon such assignment, the Trustee shall for all purposes be the sole Lender hereunder and the sole mortgagee or beneficiary under the Mortgages (and all references herein to the "Lender" shall be deemed to refer to the Trustee) and shall, together with the Servicer, among other things, (i) have the sole and exclusive benefit of and the right and power to exercise, or to direct the exercise of, all the rights and remedies of the Lender hereunder and under the Security Documents, including the right to inspect the Collateral, to receive notices and financial information, to grant or withhold consents or approvals, to benefit from indemnities, to receive, hold and apply proceeds or any other amount or property provided by the Borrower hereunder, and, upon the occurrence and during the continuation of an “Exchange Act Filing”Event of Default, to take any action required or permitted of the Lender with respect thereto, all in the Trustee's own name, and to exercise all other rights and remedies of the Lender hereunder and under the Security Documents, and (ii) are be bound by all the terms hereof which apply to the Lender. The Borrower hereby acknowledges the foregoing and agrees to be bound to the Trustee, upon such assignment, recognizing the Trustee as the Lender hereunder as if the Trustee were named in this Agreement as the Lender, recognizing that the Servicer shall be entitled to act on behalf of the Trustee and the Holders under and as provided in the Trust and Servicing Agreement and shall be entitled to and shall receive all notices, financial and other information, agreements and other documents to be delivered to the Lender or the Trustee hereunder or under any of the other Loan Documents and accepting and agreeing to all of the terms reasonably set forth in the Trust and Servicing Agreement and the exhibits thereto, all of which shall be secured under the Security Documents. Upon such assignment, the Borrower's obligations to the Lender specified in this Agreement shall be satisfied by the Borrower's tendering full and timely payment or performance thereof to the Trustee or, if directed by the Trustee, to the Servicer. With respect to the delivery of documents and other written material, the Trustee and the Servicer shall have only the obligations expressly required of the Lender herein or in the other Loan Documents or of the Trustee or the Servicer in the Trust and Servicing Agreement. All rights and remedies of the Trustee as the Lender hereunder, including all indemnities running to the Lender, shall also operate for the benefit of the Servicer and the Holders, as provided in the Trust and Servicing Agreement, and shall be exercised by the Trustee and the Servicer in accordance with and subject to the terms and conditions set forth in the Trust and Servicing Agreement. The Borrower acknowledges and agrees that, until the Borrower has received notice from the Trustee to the contrary, and subject to the terms and conditions set forth in the Trust and Servicing Agreement to the contrary, all deliveries and notifications to be made under applicable Legal Requirements or (y) comparable information is required by the Borrower to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectivelyTrustee, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to as Lender, on an ongoing basis, selected financial data pursuant to this Agreement or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to any other Loan Document shall be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” the Servicer only and not to holders of the Securities under Regulation AB or applicable Legal RequirementsTrustee.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Loan Agreement (Courtyard by Marriott Limited Partnership)
Securitization. (a) Lender shall have the right right, at Lender’s expense except as otherwise expressly provided herein, (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, Loan or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor Guarantor, Sponsor, Master Lessee and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable the Rating Agencies and reasonably acceptable to Lender;
(ii) provide opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, matters of Delaware (Aor Maryland, as applicable) an updated Insolvency Opinionand federal bankruptcy law relating to limited liability companies or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Master Lessee, and (B) updated opinions of Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest satisfactory in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory form and substance to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute such amendments to the Loan Documents and Borrower, Master Lessee or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan Parties’ organizational documents requested by Lenderinto two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate coupon of the original Components in the aggregate immediately prior to such modificationNote, (B) cause decrease the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification time periods during which Borrower is permitted to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the perform its obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents, or (C) modify any other material economic term of the Loan.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant ObligorUpon request, Borrower shall furnish (or cause to be furnished) to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for from time to time such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that as Lender determines to be a Significant Obligor necessary, advisable or appropriate for the two most recent Fiscal Years complying with any Applicable Law (including those applicable to Lender or any Servicer (including, without limitation and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for extent applicable, Regulation AB)) within the three most recent Fiscal Years and applicable interim periodstimeframes necessary, meeting the requirements of Rule 3-02 of Regulation S-X (advisable or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed appropriate in order to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X))comply with such Applicable Law.
(d) Further, if requested All reasonable out of pocket costs and expenses incurred by Borrower and Guarantor in connection with Borrower’s complying with requests made under this Section 11.1 shall be paid by Lender, except to the extent Borrower shall, promptly upon Lender’s request, furnish or Guarantor are otherwise obligated to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for provide any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings requested information pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders express provisions of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates any other Article of Borrower collectively, this Agreement or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirementsother Loan Documents.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. Subject to Sections 11.7 hereof:
(a) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan, Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation and to the extent customary and reasonable as provided in this sentence, to:
(i) provide or cause Mortgage Borrower and/or Mezzanine A Borrower to provide (A) provide updated financial and other information reasonably available to Borrower with respect to the PropertiesProperty, the Collateral, the Mezzanine A Collateral, the business operated at the PropertiesProperty, Borrower, Sponsor Mortgage Borrower, Mezzanine A Borrower, Guarantor, SPE Component Entity, Mortgage SPE Component Entity, Mezzanine A SPE Component Entity and the Manager, including, without limitation, (B) updated budgets relating to the information set forth on Exhibit C attached heretoProperty, and (BC) provide updated budgets appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other information (to extent required by investors or Rating Agencies) relating to due diligence investigations of the Properties Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and acceptable to the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) to the extent such opinions were delivered to Lender in connection with the closing of the Loan (provided any such opinion was not waived by Lender with respect to the Loan), provide (A) an updated Insolvency Opinion, and (B) updated opinions of counsel, which may be relied upon by Lender and its counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Collateral, the Mezzanine A Collateral, the Property, Property Documents, Borrower and Borrower’s Affiliates, Mezzanine A Borrower and Guarantors’ New York Mezzanine A Borrower’s Affiliates, Mortgage Borrower and Delaware counsel, substantially the same as those delivered as of the Closing Date, Mortgage Borrower’s Affiliates which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory in form and substance to Lender and shall be satisfactory in form and substance to the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents (which representations and can only warranties may be made as of a specific date and the updated to reflect any change in facts and circumstances upon which since the Closing Date, provided that such representation change in facts and warranty circumstances is based are specific solely not due to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to Default by Borrower under the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily requireLoan Documents); and
(iv) execute such amendments to the Loan Documents, the Mezzanine A Loan Document, the Mortgage Loan Documents, the Property Documents and Borrower’s, Mezzanine A Borrower’s, Mortgage Borrower’s, any Mortgage SPE Component Entity’s, any Mezzanine A SPE Component Entity’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Manager provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan Parties’ organizational documents requested into two or more components and/or additional separate notes and/or creating additional senior/subordinate note structure(s) (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document or organizational document if such modification or amendment would shall impose a Secondary Market Adverse Change on the Borrower or Guarantor. The term “Secondary Market Adverse Change” means (Ai) cause either Borrower’s or Guarantor’s liabilities or obligations under the initial weighted average of Loan Documents are increased, or Borrower’s or Guarantor’s rights under the interest rates for all Components Loan Documents are decreased, in the aggregate immediately after the effective date of such modification to exceed either case in any material respect (although change in the weighted average interest rate described in clause (ii) below shall not be deemed to increase any such liability or decrease any such rights in any material respect), (ii) any change in the weighted average interest rate (whether before or after the time of the original Components in the aggregate immediately prior to such modificationproposed Loan Bifurcation, Syndication or New Mezzanine Loan) (other than as a result of (x) payments and recoveries after an Event of Default and/or (y) application of proceeds following a Casualty or Condemnation), (Biii) cause any change to the outstanding principal balance of all Components stated Maturity Date (other than as described in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, clause (C) require Borrower to make or remake above) and/or (iv) any representations or warranties, (D) require principal change that would affect the amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsLoan.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Securitization. The Borrower hereby acknowledges that the Lenders and their Affiliates may sell or securitize the Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by Moody's, Standard & Poor's or one or more other rating agencies (▇▇▇ "▇ating Agencies"). The Borrower shall cooperate with the Lenders and their Affiliates to effect the Securitization including by (a) Lender shall have amending this Agreement and the right other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization, provided that (i) to sell any such amendment or otherwise transfer additional documentation does not impose material additional costs on the Loan or any portion thereof as a whole loan, Borrower and (ii) to sell participation interests in any such amendment or additional documentation does not materially adversely affect the Loanrights, or (iii) to securitize materially increase the obligations, of the Borrower under the Loan Documents or any portion thereof change or affect in a single asset securitization or a pooled loan securitization. (The transactions referred manner adverse to in clauses (i)the Borrower the financial terms of the Loans, (iib) and (iii) are each hereinafter referred to providing such information as a “Secondary Market Transaction” and may be reasonably requested by the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued Lenders in connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loans a Secondary Market Transaction are hereinafter referred certificate (i) agreeing to as “Securities”). At Lender’s election, each note and/or component comprising indemnify the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Lenders and their Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, any of the Rating Agencies, applicable Legal Requirements and/or or any party providing credit support or otherwise participating in the marketplace Securitization (collectively, the "Securitization Parties") for any losses, claims, damages or liabilities (the "Liabilities") to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to any Agent or Lender in connection with any Secondary Market TransactionsLoan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, including to:
or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans and (iii) (A) provide updated financial and other information with respect agreeing to reimburse the PropertiesAgents, the business operated at the Properties, Borrower, Sponsor Lenders and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and their Affiliates for any legal or other information (to extent required expenses reasonably incurred by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Persons in connection with defending the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsLiabilities.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Financing Agreement (PRG Schultz International Inc)
Securitization. (a) Lender shall have The Borrower hereby acknowledges that the right (i) to Lenders and their Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by Moody's, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes S&P or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
othe▇ ▇▇▇▇▇g agencies (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the "Rating Agencies, applicable Legal Requirements and/or otherwise in "). The Borrower shall cooperate with the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial Lenders and other information with respect their Affiliates to effect the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Borrower and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan Documents or change or affect in a manner adverse to the Borrower the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "Securitization Parties") for any losses, claims, damages or liabilities (Athe "Liabilities") confirm that to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average in any writing delivered by or on behalf of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under Affiliate of the Borrower to the Lenders in connection with any Loan Documents.
(c) IfDocument or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise necessary in order to make payments on all or a part the statements therein, in light of the Loan) collectivelycircumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or the Properties alone their successors or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount assigns of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties Loans and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Credit Agreement (Gexa Corp)
Securitization. (a) Each Borrower hereby acknowledges that each Lender shall have the right (i) to with a Term Loan and each of its Affiliates and Related Funds may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Term Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Term Loan as collateral security for loans to such Lender or its Affiliates or Related Funds or through the sale of the Term Loan or the issuance of direct or indirect interests in the Term Loan, notes which loans to such Lender or its Affiliates or Related Funds or direct or indirect interests will be rated by ▇▇▇▇▇’▇, S&P’s or one or more other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as rating agencies (the “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising Each Borrower agrees to cooperate with such Lenders and their Affiliates and Related Funds to effect the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, the information set forth on Exhibit C attached heretoby (a) executing such additional documents, and (B) provide updated budgets and other information (to extent required as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Lenders in connection with the origination of the Loan;
Securitization, provided that (i) any such additional documentation does not impose material additional costs on Borrowers, and (ii) provide any such additional documentation does not materially adversely affect the rights, or increase the obligations, of such Borrower under the Loan Documents or change or affect in a manner adverse to such Borrower the financial terms of the Term Loan, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by such Lenders in connection with the rating of the Term Loan or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Term Loan a certificate (including, without limitationi) agreeing to indemnify such Lenders and any of their Affiliates and Related Funds, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (Athe “Securitization Liabilities”) confirm that to which such Lenders or any of their Affiliates or Related Funds, or such Securitization Parties, may become subject insofar as the Securitization Liabilities arise out of or are based upon a breach of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date contained in which case confirmation as to truthSection 4.18, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender agreeing to reimburse such Lenders and their Affiliates and Related Funds, and such Securitization Parties, for any legal or other expenses reasonably determines that incurred by such Persons in connection with defending the principal amount of Securitization Liabilities. Notwithstanding the Loan together with any Related Loansforegoing, as of this Section 2.17 is subject to Agent’s and the cut-off date for such SecuritizationRequired Lenders’ rights and obligations under Sections 13 and 14 hereof in all respects and, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) event of Regulation AB (which includes, but may not be limited to, a balance sheet direct conflict between this Section 2.17 and any provision of Section 13 or 14 with respect to Agent’s and the entity that Lender determines to be a Significant Obligor for Required Lenders’ rights and obligations, it is the two most recent Fiscal Years and applicable interim periods, meeting intent of the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines parties that the Properties is the Significant Obligor applicable provision of Section 13 or 14 shall control and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X))govern.
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) The Borrower hereby acknowledges that the Lender shall have the right (i) to and any of its Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of such Loans as collateral security for loans to the Lender or any portion thereof as a whole loan, (ii) to sell participation its Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lender or (iii) to securitize the Loan its Affiliate or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the "Rating Agencies, applicable Legal Requirements and/or otherwise in "). The Borrower shall cooperate with the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial Lender and other information with respect its Affiliates to effect the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or the Lender, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization (collectively, "Securitization Parties"), provided that (i) relating any such amendment or additional documentation does not impose material additional costs on the Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan Documents or change or affect in a manner adverse to the Properties Borrower the financial terms of the Loans, (b) providing such information as may be reasonably requested by the “Updated Information”) which were obtained Lender, any Rating Agency or other Securitization Party in connection with the origination rating of the Loan;
Loans or the Securitization, (iic) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (includingi) agreeing to indemnify the Lender and any of its Affiliates and other Securitization Parties for any losses, without limitationclaims, damages or liabilities (the "Liabilities") to which the Lender, its Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon (solely as relates to the Borrower, the other Loan Parties, their Affiliates, their assets, property or business or their obligations to the Lender), any “B Note” purchasersuntrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of the Borrower and its Affiliates to the Lender in connection with any Loan Document, or arise out of or are based upon (solely as relates to the Borrower, the other Loan Parties, their Affiliates, their assets, property or business or their obligations to the Lender), the omission or otherwise reasonably satisfactory alleged omission to state therein a material fact required to be stated in such sections or necessary in order to make the statements in such sections, in light of the circumstances under which they were made, not misleading and such indemnity shall survive any transfer by the Lender or its successors or assigns of the Loans and (ii) agreeing to reimburse the Lender and any of its Affiliates and other Securitization Parties for any legal or other expenses reasonably incurred by such Persons in connection with defending the Rating Agencies;
Liabilities, (iiid) (A) confirm that as of making such representations, warranties and covenants with respect to the closing date of any Secondary Market TransactionBorrower, the representations other Loan Parties and warranties their Affiliates, and their property, as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only may be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as reasonably requested by the Rating Agencies may customarily require; and
(iv) execute amendments to or other Securitization Parties, but which do not materially adversely affect the Loan Documents and rights, increase the Loan Parties’ organizational documents requested by Lender; providedmonetary obligations or materially increase the other obligations, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
, and (ce) If, at providing such information regarding the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or its Subsidiaries and Affiliates, the Collateral and other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectivelyproperty, or the Properties alone or the Properties assets and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount business of the Loan together with any Related Loans, Parties (including appraisals and valuations) as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.the Rating Agencies and other Securitization Parties. ARTICLE III
Appears in 1 contract
Securitization. (a) Borrower acknowledges and agrees that Lender shall have the absolute and unconditional right (i) at any time after the date hereof and at any time during the term of the Loan without requiring any consent or approval from Borrower, any Loan Party or any other person guaranteeing the payment of the Debt or any other Person associated with or connected with the Loan or the Collateral to sell sell, assign, pledge, hypothecate or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection whole or in part, or to place one or more participation interests therein in one or more separate transactions, or to effect a syndication or securitization of the Loan in one or more transactions (a “Securitization”), in each case to or with any Secondary Market Transaction such Persons (including, without limitation, domestic or foreign banks, insurance companies, pension funds, trusts, other institutional lenders or investors, natural persons, grantor trusts, owner trusts, special purpose corporations, REMICs, FASITs, real estate investment trusts or other similar or comparable investment vehicles) (collectively or individually, “Investor”) and on such terms and conditions as Lender shall deem to be appropriate in the exercise of its sole and absolute discretion. In connection with any “B Note” purchaserssuch sale, assignment, participation, syndication or securitization, Lender shall have the absolute and unconditional right without obtaining the prior consent or approval of any Loan Party or any other Person guaranteeing the payment of the Debt or any other Person associated or connected with the Loan or the Collateral (including the Property Owner) to disclose, deliver and to share with any prospective purchaser of the Loan or of any securities or of any participation or other interest therein (including any such interest to be acquired in connection with a syndication or securitization of the Loan), or otherwise reasonably satisfactory with any prospective Rating Agency, or their respective counsel or representatives, such information (financial or otherwise), documents and instruments pertaining to the Loan or any other person, party or entity associated or connected with the Loan or the Collateral (collectively, the “Disclosure Material and Information”) as Lender shall deem to be appropriate in the exercise of its sole and absolute discretion. Borrower shall cooperate, and shall cause each Loan Party and each other Person, associated or connected with the Rating Agencies;
(iii) (A) confirm that as Loan or the Collateral to cooperate, in all reasonable respects with Lender in connection with any sale, assignment, participation, syndication or securitization of the closing date Loan or any interest therein by Lender pursuant to the provisions of this paragraph but at no out-of-pocket cost to Borrower. Without in any manner implying the necessity therefor, Borrower grants to Lender, and shall cause each Loan Party and each other Person associated or connected with the Loan or the Collateral to specifically grant to Lender, the right to distribute any and all of the Disclosure Material and Information in connection with any sale, assignment, participation, syndication or securitization of the Loan or of any Secondary Market Transactioninterest therein by Lender pursuant to the provisions of this paragraph. Borrower shall execute and deliver, and shall cause each Loan Party and each other Person associated or connected with the representations Loan or the Collateral to execute and warranties deliver, such documents and instruments as may be reasonably necessary to (a) split the Loan into two or more loans evidenced by and pursuant to separate sets of notes and other related loan documents, or (b) to modify the terms and provisions of the Loan Documents, in each case to the full extent required by Lender to facilitate any sale, assignment, pledging, hypothecation, participation, syndication or securitization of the Loan or any interest therein by Lender pursuant to the provisions of this paragraph, it being agreed that (i) any such splitting or modification of the Loan will not materially adversely affect or diminish the rights of any Loan Party as presently set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall will not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the monetary obligations and liabilities or reduce materially increase the rights non-monetary obligations of Borrower or any Guarantor Loan Party under the Loan Documents.
, and (cii) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is split, the retained interest of Lender, if any, in the Loan shall be allocated to or among one or more of such separate loans in a manner specified by Lender in its sole and absolute discretion. If Borrower shall default in the performance of its obligation as set forth in this paragraph, and if such default shall not treated as a non-recourse loan be remedied by Borrower within fifteen (15) days after notice by Lender, Lender shall have the absolute and unconditional right in its sole and absolute discretion to declare such default an Event of Default under Instruction 3 for Item 1101(k) this Agreement. Lender shall endeavor to provide notice to Borrower of Regulation ABany such assignment, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB)sale, or
(ii) if Lender reasonably determines that the principal amount participation, syndication or securitization of the Loan together with in a reasonably timely manner, but any Related Loans, as failure by Lender to provide notice to Borrower shall not give rise to any claim or defense on the part of any of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homesLoan Parties, or other properties that would be deemed to constitute a business and not real estate limit the rights of Lender under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, this Section 15.19 or the Properties alone Loan Documents. Until otherwise directed in writing by Lender following the occurrence of any such assignment, sale, participation, syndication or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lendersecuritization, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, continue to deliver all payments and deposits as Lender shall reasonably determine required prior to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lendersuch occurrence.
Appears in 1 contract
Securitization. Lender, at its option, may elect to effect a securitization of the Loan by means of the issuance of certificates of interest therein or notes secured thereby (the "Securities") rated by one or more Rating Agencies (the "Securitization"). In such event and upon request by Lender to seek to effect such a Securitization, Borrower shall, subject to the restrictions on disclosure set forth in Section 8.27, promptly thereafter cooperate (at no out-of-pocket cost to Borrower) in all reasonable respects with Lender in the Securitization including (a) Lender shall have amending this Agreement and the right (i) other Loan Documents, and executing such additional documents, in order to sell or otherwise transfer bifurcate the Loan into two or any portion thereof more constituent loans or to effect such other changes as a whole loan, (ii) to sell participation interests in the Loan, may be reasonably necessary or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued desirable in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s electionSecuritization or requested by a Rating Agency, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide providing such information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which as may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained in connection with the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of a private placement memorandum or registration statement required to privately place or publicly distribute the Disclosure Documents and on an ongoing basisSecurities in a manner which does not conflict with federal or state securities laws, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1(c) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act providing in connection with or relating to the Securitization (such information, an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.indemnification certificate
(ei) If Lender determines certifying that Borrower alone has carefully examined such private placement memorandum or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-Xregistration statement, as applicable, Regulation ABincluding the sections entitled "Special Considerations", "Description of the Loan and the Underlying Properties", "Operator", "The Borrower" and "Certain Legal Aspects of the Loan" (or similarly titled sections), and that such Sections (and any amendmentother Sections reasonably requested), modification insofar as they relate solely to Borrower, its Affiliates, the Loan or replacement thereto (to Borrower's knowledge) the Collateral, do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, (ii) indemnifying Lender, the underwriter or placement agent and any of their Affiliates for any losses, claims, damages or liabilities (the "Liabilities") to which such parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact relating to Borrower, its Affiliates, the Loan or the Collateral contained in such Sections or arise out of or are based upon the omission or alleged omission to state therein a material fact relating to Borrower, its Affiliates, the Loan or (to Borrower's knowledge) the Collateral required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading and (iii) agreeing to reimburse such parties for any legal or other Legal Requirements relating expenses reasonably incurred by such parties in connection with investigating or defending the Liabilities, (d) causing to be rendered (at Lender's expense) such customary and reasonable opinion letters as may be requested by and satisfactory to any Rating Agency including substantive nonconsolidation opinion letters and an opinion letter from local counsel to the Borrower stating that the assignment of the Loan and the Loan Documents to a trustee in connection with the Securitization or is enforceable, (e) making such customary and reasonable representations, warranties and covenants with respect to the Borrower, and the members of the Borrower Control Group, as shall otherwise may be requested by any Rating Agency, (f) providing such information regarding the Collateral and Borrower, members of the Borrower Control Group, and their respective Affiliates as may be reasonably requested by Lendera Rating Agency or potential investors in Securities or otherwise reasonably required in connection with an election of REMIC or FASIT or other tax status and ongoing administration and reporting by any trust formed in connection with the Securitization, (g) amending Borrower's organizational documents or making such other reasonable changes to the structure of Borrower or such of its partners or members or shareholders as may be required by any Rating Agency to conform to requirements customarily imposed in similar transactions, and (h) obtaining a comfort letter (in customary form and containing customary exceptions) from a nationally recognized accounting firm in connection with financial information relating to Borrower and the members of the Borrower Control Group and which is, in connection with the Securitization, presented in a private placement memorandum or prospectus. In no event shall Borrower be required to pay any Rating Agency or other fees or expenses or be required to pay any costs or expenses whatsoever in connection with any such Securitization other than the overhead and internal costs incurred by Borrower in cooperating in the manner described in clauses (a) through (h) above. Notwithstanding the provisions of this Section 8.34.3 to the contrary, neither Borrower nor any member of the Borrower Control Group shall be required to release or disclose any non-public information concerning any Entity, the securities of which are traded publicly, to any Person who has not furnished a confidentiality agreement.
Appears in 1 contract
Sources: Loan Agreement (Lazard Freres Real Estate Investors LLC)
Securitization. (a) Lender shall have The Borrower hereby acknowledges that the right (i) to Lenders and their Affiliates may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Revolving Loans (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”) through the pledge of the Revolving Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Revolving Loans or the issuance of direct or indirect interests in the Revolving Loans, which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by ▇▇▇▇▇’▇, Standard & Poor’s or one or more other rating agencies (the “Rating Agencies”). Any certificatesThe Borrower shall cooperate with the Lenders and their Affiliates to effect the Securitization including by (a) amending this Agreement and the other Loan Documents, notes or other securities issued and executing such additional documents, as reasonably requested by the Lenders in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s electionthe Securitization, each note and/or component comprising provided that (i) any such amendment or additional documentation does not impose material additional costs on the Borrower and (ii) any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan may be subject Documents or change or affect in a manner adverse to one or more Secondary Market Transactions.
the Borrower the financial terms of the Revolving Loans, (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide providing such information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which as may be reasonably required requested by Lender the Lenders in order connection with the rating of the Revolving Loans or the Securitization, and (c) providing in connection with any rating of the Revolving Loans a certificate (i) agreeing to satisfy indemnify the market standards to which Lender customarily adheres or which may be required in the marketplaceLenders and their Affiliates, by prospective investors, any of the Rating Agencies, applicable Legal Requirements and/or or any party providing credit support or otherwise participating in the marketplace Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Liabilities”) to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Loan Party to any Agent or Lender in connection with any Secondary Market TransactionsLoan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, including to:
or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Revolving Loans and (iii) (A) provide updated financial and other information with respect agreeing to reimburse the PropertiesAgents, the business operated at the Properties, Borrower, Sponsor Lenders and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and their Affiliates for any legal or other information (to extent required expenses reasonably incurred by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Persons in connection with defending the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsLiabilities.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Financing Agreement (Progressive Gaming International Corp)
Securitization. (a) Parent and Borrower hereby acknowledge that each Lender shall have the right (i) to and each of its Affiliates and Related Funds may sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. Obligations (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Obligations as collateral security for loans to such Lender or its Affiliates or Related Funds or through the sale of the Obligations or the issuance of direct or indirect interests in the Obligations, notes which loans to such Lender or its Affiliates or Related Funds or direct or indirect interests will be rated by Moody’s, S&P or one or more other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as rating agencies (the “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising Parent and Borrower agree to cooperate with such Lenders and their Affiliates and Related Funds to effect the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, the information set forth on Exhibit C attached heretoby (a) executing such additional documents, and (B) provide updated budgets and other information (to extent required as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Lenders in connection with the origination Securitization, provided that (i) any such additional documentation does not impose additional costs on Borrower (other than costs of the Loan;
a de minimis nature), and (ii) provide any such additional documentation does not adversely affect the rights, or increase the obligations (Aother than increases of a de minimis nature), of Borrower under the Loan Documents or change or affect in a manner adverse to Borrower the financial terms of the Term Loan or any Advance, (b) an updated Insolvency Opinionproviding such information as may be reasonably requested by such Lenders in connection with the rating of the Obligations or the Securitization, and (Bc) updated opinions providing in connection with any rating of the Obligations or the Securitization a certificate (i) agreeing to indemnify such Lenders and any of their Affiliates and Related Funds, any of the Rating Agencies, or any party providing credit support or otherwise participating in the Securitization (collectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (the “Securitization Liabilities”) to which such Lenders or any of their Affiliates or Related Funds, or such Securitization Parties, may become subject insofar as the Securitization Liabilities arise out of or are based upon a breach of the representation and warranty contained in Section 5.19, and (ii) agreeing to reimburse such Lenders and their Affiliates and Related Funds for any reasonable legal or other expenses reasonably incurred by such Persons in connection with defending the Securitization Liabilities.”
(q) Section 3.4 of the Loan Agreement is hereby amended by deleting the date “April 14, 2009” appearing therein and inserting in lieu thereof the date “April 14, 2010”.
(r) Section 3.6 of the Loan Agreement is hereby amended by deleting the last sentence thereof in its entirety and substituting the following therefore: “The foregoing to the contrary notwithstanding, in the event that Borrower repays the Obligations in full and terminates this Agreement pursuant to the first sentence of this Section 3.6 and if (a) such repayment occurs with the proceeds of a refinancing provided by ▇▇▇▇▇ Fargo or WFF or (b) such repayment occurs after the third anniversary of the Closing Date and occurs with the proceeds of (i) Parent’s or Borrower’s consummation of an underwritten public equity offering, or (ii) the sale (by merger or otherwise) of all or substantially all of the Stock of Borrower or all or substantially all of Borrower’s and Guarantorsits Subsidiaries’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan assets (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitizationbankruptcy proceeding), Lender reasonably determines there to bein one or a series of related transactions, as then the Applicable Prepayment Premium shall be zero ($0).”
(s) Article 5 of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of Loan Agreement is hereby amended by adding at the mortgage loans included or expected to be included in end thereof the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, following as specified by Lender, but only for so long new Section 5.26 as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.follows:
Appears in 1 contract
Sources: Loan and Security Agreement (Vicorp Restaurants Inc)
Securitization. (a) Lender shall have The Borrowers hereby acknowledge that the right (i) to Lenders and any of their Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by Mood▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes ▇▇andard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the "Rating Agencies, applicable Legal Requirements and/or otherwise in "). The Borrowers shall cooperate with the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial Lenders and other information with respect their Affiliates to effect the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Borrowers and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrowers under the Loan Documents or change or affect in a manner adverse to the Borrowers the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and any of their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "Securitization Parties") for any losses, claims, damages or liabilities (Athe "Liabilities") confirm that to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of any Borrower and its Affiliates to the Lenders in connection with any Loan Document or arise out of or are based upon the omission by Borrowers or any of their Affiliates or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the closing date of circumstances under which they were made, not misleading and such indemnity shall survive any Secondary Market Transaction, transfer by the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as Lenders or their successors or assigns of the closing date of the Secondary Market Transaction Loans (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truthcollectively, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty"Indemnified Liabilities") and (Bii) make such additional representations agreeing to reimburse the Lenders and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates their Affiliates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor legal or other Person that is directly or indirectly committed expenses reasonably incurred by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsIndemnified Liabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (aA) Lender, at its option, may elect to effect a Securitization of all or any portion of the Loan (including any Component thereof). In such event and upon request by Lender to seek to effect such a Securitization, Borrower shall have promptly as reasonably practicable thereafter cooperate in all reasonable respects with Lender in connection with the right Securitization to amend this Agreement and the other Loan Documents, and to execute such additional documents, in order to bifurcate the Loan into two or more constituent loans, to terminate any cross-default provisions with respect to any other loan to the extent reasonably requested by Lender, or to effect such other changes as may be reasonably necessary or desirable in connection with a Securitization or requested by a Rating Agency, provided, however, in each such instance (i) to sell or otherwise transfer the outstanding principal balance of all the resulting notes evidencing the Loan (or any portion thereof as a whole loancomponents of such notes) immediately after the effective date of such modification equals the outstanding principal balance of the Loan immediately prior to such modification and the weighted average of the interest rates for all such notes (or components of such notes) immediately after the effective date of such modification equals the interest rate of the original Note immediately prior to such modification, (ii) neither Borrower, the other Borrower Parties nor Sponsor Affiliated Manager shall be required to sell participation interests enter into any modification or amendment to this Agreement or the other Loan Documents or any other document, instrument or certificate if such modification, amendment, document, instrument or certificate would adversely affect or diminish the respective rights or increase their respective obligations and liabilities as presently set forth in this Agreement and in the Loanother Loan Documents, or (iii) in each case other than to securitize a de minimis extent, and other than resulting from any componentization of the Loan pursuant to Section 13.6, including any “rate creep” that would occur as a result of applications of principal payments (whether voluntary, mandatory, involuntary or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i)otherwise occurring, (iiincluding without limitation partial prepayments associated with Property Releases and applications of Casualty Proceeds and Condemnation Proceeds) and/or upon occurrence and during the continuance of an Event of Default, and (iii) are each hereinafter referred Borrower shall not be required to as a “Secondary Market Transaction” incur any costs and expenses in the transactions referred to in clause (iiiperformance of Borrower’s obligations under this Section 13.3(A) shall hereinafter be referred to as a “Securitization”. Any certificatesother than expenses of Borrower’s counsel, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactionsaccountants and consultants.
(bB) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide (Ax) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Guarantor, Sponsor and the Property Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (By) provide at Lender’s cost and expense, updated budgets appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other information due diligence investigations of the Property (to extent required by investors or Rating Agencies) relating to the Properties (collectively, the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated Updated Information through letters of auditors or opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise counsel reasonably satisfactory acceptable to Lender and the Rating Agencies;
(ii) provide such other information as may be reasonably requested in connection with the preparation of a private placement memorandum or registration statement required to privately place or publicly distribute the Securities in a manner which does not conflict with applicable federal or state securities laws (provided that Borrower shall not be required to provide any information for which the disclosure would be a violation of any Lease);
(iii) (A) confirm that provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, matters of the closing date of Delaware and federal bankruptcy law relating to limited liability companies, and any other opinion customary in Secondary Market TransactionTransactions or required by the Rating Agencies with respect to the Property, the representations Loan Documents, Borrower, Guarantor and warranties as set forth Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Loan Documents are trueRating Agencies;
(iv) provide updated, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily requirerequire that are customary in Secondary Market Transactions; and
(ivv) execute amendments to amending any Individual Borrower’s or any partner or member or shareholder of such Individual Borrower’s organizational documents, and
(vi) providing such information regarding the Loan Documents Property, Collateral and Borrower, the Loan Parties’ organizational documents other Borrower Parties and their respective Affiliates as may be requested by Lender; provided, however, a Rating Agency or potential investors in Securities or otherwise required in connection with an election of REMIC or other tax status and ongoing administration and reporting by any trust formed in connection with the Securitization (provided that Borrower shall not be required to modify provide any information for which the disclosure would be a violation of any Lease). Borrower shall not be required to incur any costs or amend expenses in the performance of its obligations under this Section 13.3(B) other than expenses of Borrower’s counsel, accountants and consultants. In addition, neither Borrower, the other Borrower Parties nor Sponsor Affiliated Manager shall be required under this Section 13.3(B) to enter into any Loan Document if such modification or amendment would (A) cause to this Agreement or the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to other Loan Documents or any other document, instrument or certificate if such modification, (B) cause amendment, document, instrument or certificate would adversely affect or diminish the outstanding principal balance of all Components respective rights or increase their respective obligations and liabilities as presently set forth in this Agreement and in the aggregate immediately after the effective date of such modification other Loan Documents, in each case other than to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modificationa de minimis extent, (C) require Borrower to make or remake and other than resulting from any representations or warranties, (D) require principal amortization componentization of the Loan (other than repayment in full on the Maturity Date)pursuant to Section 13.6, (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person “rate creep” that is directly or indirectly committed by contract would occur as a result of applications of principal payments (whether voluntary, mandatory, involuntary or otherwise to make payments on all or a part occurring, including without limitation partial prepayments associated with Property Releases and applications of Casualty Proceeds and Condemnation Proceeds) and/or upon occurrence and during the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount continuance of the Loan together with any Related Loans, as an Event of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X))Default.
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, Loan or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor Guarantor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, matters of Delaware (or Maryland, as applicable) and federal bankruptcy law relating to limited liability companies or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property and Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest satisfactory in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory form and substance to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan Parties’ organizational documents requested by Lenderinto two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of change the interest rates for all Components in rate, the aggregate immediately after stated maturity or the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been metthe Note, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, except in connection with a SecuritizationLoan Bifurcation which may result in varying fixed interest rates and amortization schedules, Lender reasonably determines there to be, as but which shall have the same initial weighted average coupon of the cutoff date for such Securitizationoriginal Note. Notwithstanding anything to the contrary contained in this Agreement or the other Loan Documents, a concentration with respect other than costs and expenses which are otherwise the responsibility of Borrower pursuant to such Tenant or group of Affiliated Tenants within all the terms of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Loan Documents, Borrower shall furnish to Lender, not be responsible for the payment of any costs and expenses incurred in connection with the preparation of the Disclosure Documents this Section 11.1(b), other than any internal, administrative or clerical cost and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified expenses incurred by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsBorrower.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Lender shall have The Loan Parties hereby acknowledge that the right (i) to Lenders and their Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the "Rating Agencies"). The Loan Parties shall use reasonable efforts cooperate with the Lenders and their Affiliates to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination Securitization, provided that (i) any such amendment or additional documentation does not impose costs in excess of $25,000 on the Loan;
Loan Parties and (ii) provide any such amendment or additional documentation does not adversely affect the rights, or increase the obligations (Aother than ministerial obligations), of the Loan Parties under the Loan Documents or change or affect in a manner adverse to the Loan Parties the financial terms of the Loans, (b) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (includingi) agreeing to indemnify the Agents, without limitationthe Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "Securitization Parties") for any losses, claims, damages or liabilities (Athe "Liabilities") confirm that to which the Agents, the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon a violation of the closing date of any Secondary Market Transaction, the representations and warranties as representation set forth in Section 6.01(p) hereof, and such indemnity shall survive any transfer by the Loan Documents are true, complete and correct in all material respects as Lenders or their successors or assigns of the closing date of the Secondary Market Transaction (except to the extent that any such representations Loans and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the SecuritizationAgents, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor Lenders and their Affiliates for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, any legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Financing Agreement (Aaipharma Inc)
Securitization. The Borrower hereby acknowledges that the Lenders and their Affiliates may sell or securitize the Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the Lenders or their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the Loans, which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by Mood▇'▇, ▇▇andard & Poor's or one or more other rating agencies (the "Rating Agencies"). The Borrower shall cooperate with the Lenders and their Affiliates to effect the Securitization including by (a) Lender shall have amending this Agreement and the right other Loan Documents, and executing such additional documents, as reasonably requested by the Lenders in connection with the Securitization, provided that (i) to sell any such amendment or otherwise transfer additional documentation does not impose material additional costs on the Loan or any portion thereof as a whole loan, Borrower and (ii) to sell participation interests in any such amendment or additional documentation does not materially adversely affect the Loanrights, or (iii) to securitize materially increase the obligations, of the Borrower under the Loan Documents or any portion thereof change or affect in a single asset securitization or a pooled loan securitization. (The transactions referred manner adverse to in clauses (i)the Borrower the financial terms of the Loans, (iib) and (iii) are each hereinafter referred to providing such information as a “Secondary Market Transaction” and may be reasonably requested by the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued Lenders in connection with the rating of the Loans or the Securitization, and (c) providing in connection with any rating of the Loans a Secondary Market Transaction are hereinafter referred certificate (i) agreeing to as “Securities”). At Lender’s election, each note and/or component comprising indemnify the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Lenders and their Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, any of the Rating Agencies, applicable Legal Requirements and/or or any party providing credit support or otherwise participating in the marketplace Securitization (collectively, the "Securitization Parties") for any losses, claims, damages or liabilities (the "Liabilities") to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any Loan Document or in any writing delivered by or on behalf of the Borrower to the Lenders in connection with any Secondary Market TransactionsLoan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, including to:
(i) (A) provide updated financial and other information with respect or necessary in order to make the Propertiesstatements therein, in light of the business operated at the Propertiescircumstances under which they were made, Borrower, Sponsor and the Manager, including, without limitation, the information set forth on Exhibit C attached heretonot misleading, and such indemnity shall survive any transfer by the Lenders or their successors or assigns of the Loans and (Bii) provide updated budgets agreeing to reimburse the Lenders and their Affiliates for any reasonable legal or other information (to extent required expenses incurred by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Persons in connection with defending the origination of the Loan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan DocumentsLiabilities.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Sources: Credit Agreement (Pen Holdings Inc)
Securitization. (a) Borrower acknowledges and agrees that Lender shall have the right may (i) to sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any portion thereof as a whole loanof the Loan and the Loan Documents, (ii) to sell participation interests in the Loan, Loan or (iii) to securitize consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the Loan “Securities”) secured by or evidencing ownership interests in all or any portion thereof in a single asset securitization of the Loan and the Loan Documents or a pooled loan securitization. pool of assets that include the Loan and the Loan Documents (The the transactions referred to in clauses (i), (ii) ), and (iii) above are each hereinafter herein referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy the satisfying customary market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor and the Guarantor, SPE Component Entity, Manager, including, without limitationthe Management Agreements, the information set forth on Exhibit C attached heretoProperty Documents, the Ground Leases, the PILOT Leases, the PILOT Documents and any Tenant, (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property, (C) updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) to the extent such opinions were delivered to Lender in connection with the closing of the Loan, provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially which may be relied upon by Lender, the same Rating Agencies and their respective counsel, agents and representatives, as those delivered as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Closing DateRating Agencies with respect to the Property, Property Documents, Borrower and B▇▇▇▇▇▇▇’s Affiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute such amendments to the Loan Documents Documents, the Property Documents, and B▇▇▇▇▇▇▇’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan Parties’ organizational documents requested into (I) one or more participations or (II) one or more component and/or additional separate notes and/or creating additional senior/subordinate note structure(s) and reallocating the principal amount of the Loan among such components and/or notes evidencing the Loan and/or adjustment of the interest rates thereon (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average require amortization of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed Loan, change the weighted average interest rate of Interest Rate or the original Components stated maturity (except as provided in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, subclause (C) above) (it being agreed that that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan and (y) any applications to principal during the continuance of an Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or reallocation shall require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date)Loan, (Eiii) change there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the form of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any Stated Maturity Date amendment which increases Borrower’s or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor Guarantor’s liability under the Loan DocumentsDocuments in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, at all times the weighted average Interest Rate of all components of the Loan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any prepayment of the Loan and (y) any applications to principal during the continuance of an Event of Default.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties Property alone or the Properties Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (without duplication and to the following financial information:
extent not previously provided) (i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB, if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, net operating income for or (ii) the Properties and the Related Properties for the most recent Fiscal Year and interim period as financial statements required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k1112(b)(2) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender . Such financial data or financial statements meeting the requirements of Item 1112(b)(1shall be furnished to Lender (A) or within ten (210) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Business Days after notice from Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and on an ongoing basis(C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data and/or or financial statements pursuant to clauses (B) or (C) of this sentence with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only any period for so long as such entity or entities are which a Significant Obligor and either (x) filings filing pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) is not required. If requested by Lender, Borrower shall furnish to Lender financial data and/or financial statements for any tenant of the Property (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(d) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section shall be audited by Deloitte, Ernst & Young, RSM McGladrey, B▇▇▇▇ N▇▇▇▇▇ N▇▇▇▇, PwC or other independent certified public accountant reasonably approved by Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be made provided. All financial data and statements (audited or unaudited) provided by Borrower under applicable Legal Requirements or this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirementsd).
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by LenderL▇▇▇▇▇, Borrower shall provide Lender, within a reasonable period of time following Lender’s request thereforpromptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, AB or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender, in each case, to the extent reasonably available to Borrower.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements as Lender determines to be necessary or appropriate for such compliance, in each case, to the extent reasonably available to Borrower.
(g) All reasonable out-of-pocket third-party costs and expenses incurred by B▇▇▇▇▇▇▇ and Guarantor in connection with Borrower’s compliance with requests made under this Section 11.1 (including any documentary stamp, intangible or other mortgage taxes) and any fees and expenses of the Rating Agencies incurred in connection with a syndication and/or Securitization of the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. In addition, Borrower and Guarantor shall be responsible for the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to requests made pursuant to Section 11.1 and Section 11.2.
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Securitization. (a) Borrower acknowledges and agrees that Lender shall have may, at each party’s expense to the right extent provided for in accordance with Section 9.1.1(b), consummate one or more private or public securitizations of rated single- or multi-class securities (ithe “Securities”) to sell secured by or otherwise transfer the Loan evidencing ownership interests in all or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to securitize of the Loan or any portion thereof in a single asset securitization and the Loan Documents or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” pool of assets that include the Loan and the transactions referred to in clause Loan Documents (iii) shall hereinafter be referred to as such sales, participations and/or securitizations, collectively, a “Securitization”). Any certificates, notes B▇▇▇▇▇▇▇ acknowledges and agrees that Disqualified Persons may be holders or other securities issued purchasers of Securities in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market TransactionsSecuritization.
(b) If requested by At the request of Lender, and to the Loan Parties extent not already required to be provided by or on behalf of Borrower under this Agreement, Borrower shall use reasonable efforts to provide information not in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents Lender or which may be reasonably required by Lender or take other actions reasonably required by L▇▇▇▇▇, in each case in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, by prospective investors, investors and/or the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactionssuch Securitization, including to:
(i) (A) provided such information is in its possession and can be produced without undue burden or cost. Lender shall have the right to provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor prospective investors and the ManagerRating Agencies any information in its possession, including, without limitation, financial statements relating to Borrower, Senior Borrower, Guarantor, if any, the Properties and any Tenant of the Improvements. Borrower acknowledges that certain information regarding the Loan and the parties thereto and the Properties may be included in a private placement memorandum, prospectus or other disclosure documents. Borrower shall, at L▇▇▇▇▇’s request, at L▇▇▇▇▇’s sole cost and expense (other than with respect to Borrower’s attorneys’ fees and expenses), cooperate with L▇▇▇▇▇’s efforts to arrange for a Securitization in accordance with the market standards to which Lender customarily adheres and/or which may be required by prospective investors and/or the Rating Agencies in connection with any such Securitization. Borrower agrees to review, at L▇▇▇▇▇’s request in connection with the Securitization, the highlighted sections of the Disclosure Documents to the extent of the information set forth on Exhibit C attached heretothat was provided by B▇▇▇▇▇▇▇ and relates to Borrower, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to Senior Borrower, Guarantor, and/or the Properties (the “Updated Covered Disclosure Information”) which were obtained and shall confirm that the factual statements and representations contained in connection with such highlighted sections (to the origination extent of any Provided Information therein) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the Loan;circumstances under which they were made, not misleading.
(iic) provide (A) an updated Insolvency Opinion, and (B) updated opinions of BorrowerBorrower agrees to make upon L▇▇▇▇▇’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (includingwritten request, without limitation, any “B Note” purchasersall structural or other changes to the Loan (including delivery of one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan and such new notes or modified note may have different interest rates and amortization schedules), modifications to any documents evidencing or otherwise reasonably satisfactory securing the Loan, creation of one or more new mezzanine loans (including amending Borrower’s organizational structure to Lender and provide for one or more new mezzanine borrowers), delivery of opinions of counsel acceptable to the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transaction, the representations Agencies or potential investors and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any addressing such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties matters as the Rating Agencies or potential investors may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that in creating such new notes or modified notes or new mezzanine notes Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (Ai) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate payable under the Note (except that the weighted average interest rate may subsequently change due to (1) the application of funds following an Event of Default, and (2) the application of Net Liquidation Proceeds after Debt Service), (ii) the stated maturity of the original Components in Note, (iii) the aggregate immediately prior to such modificationamortization of principal of the Note, (Biv) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization other material economic term of the Loan (other than repayment in full on including, but not limited to, the Maturity Dateaggregate Exit Fee payable across all notes), (E) change any Stated Maturity Date or (Fv) otherwise increase decrease the time periods during which Borrower is permitted to perform its obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request thereforpromptly upon written request, with any other or additional financial statements, or financial, statistical or operating information, information or other information as Lender shall reasonably determine to necessary or appropriate (including items required (or items that would be required if the Securitization were offered publicly) pursuant to Regulation S-K AB under the Securities Act, or Regulation S-X, as applicable, Regulation ABthe Exchange Act, or any amendment, modification or replacement thereto thereto) or required by any other legal requirements, in each case, in connection with any private placement memorandum, prospectus or other Legal Requirements relating disclosure documents or materials or any filing pursuant to a the Exchange Act in connection with the Securitization or as shall otherwise be reasonably requested by LenderL▇▇▇▇▇, provided, in each case, the same is in Borrower’s possession or control or can be produced without undue burden.
Appears in 1 contract
Securitization. (a) Lender shall have The Loan Parties hereby acknowledge that the right (i) to Lenders and their Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the "Rating Agencies"). The Loan Parties shall use reasonable efforts cooperate with the Lenders and their Affiliates to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Loan Parties and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Loan Parties under the Loan Documents or change or affect in a manner adverse to the Loan Parties the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "Securitization Parties") for any losses, claims, damages or liabilities (Athe "Liabilities") confirm that to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause in any writing delivered by or on behalf of any Loan Party to the initial weighted average Lenders in connection with any Loan Document or arise out of or are based upon the omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Lenders or their successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower Loans and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, Loan or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions transaction referred to in clauses (i), (ii) and (iii) are each above shall hereinafter be referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction Securitization are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market TransactionsTransactions (provided, including that, Borrower shall only be responsible for any of Borrower’s out-of-pocket and internal costs and expenses (together with Borrower’s attorney’s fees and expenses) incurred in connection with Borrower’s compliance with this Section 11.1, but Borrower shall not be required to reimburse Lender for Lender’s costs and expenses in connection with this Section 11.1 or any other third party’s costs and expenses in connection with this Section 11.1, except as expressly set forth above, including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor Guarantor and the Manager, including, without limitation, the information set forth on Exhibit C attached hereto, and (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property, if any, and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors acceptable to Lender and the Rating Agencies;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated updates of opinions of Borrower’s counsel delivered at closing, which may be relied upon by Lender, the Rating Agencies and Guarantors’ New York and Delaware their respective counsel, substantially the same as those delivered as of the Closing Dateagents and representatives, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest satisfactory in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory form and substance to Lender and the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are and can only be made as of a specific date and in the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily requireLoan Documents; and
(iv) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan Parties’ organizational documents requested by Lenderinto two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity, the amortization of principal set forth in the Note (A) cause except in connection with a Loan Bifurcation which may result in varying fixed interest rates and amortization schedules, but which shall have the same initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate coupon of the original Components in the aggregate immediately prior to such modification, (BNote) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the Borrower’s obligations or reduce the rights of Borrower or any Guarantor decrease Borrower’s rights, under the Loan DocumentsDocuments other than in a de-minimus manner; provided, however, (a) prior to an Event of Default, payments and/or prepayments of principal hereunder shall be applied on a pro-rata basis to each loan component/note evidencing the Loan and (b) after an Event of Default, Lender may apply principal payments and/or prepayments in its sole discretion.
(c) If, at the time a one or more Disclosure Document is Documents are being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties Property alone or the Properties Property and Related Properties collectively, will be a Significant ObligorObligor for purposes of such Securitization, Borrower shall furnish (or cause to be furnished) to Lender upon request the following financial information:
(i) the selected financial data or, if applicable, net operating income, described in Item 1112(b)(1) of Regulation AB, if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan (or portion of the Loan included in such Securitization) and any Related Loans are included in a Securitization does, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in such Securitization or (ii) the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under financial statements described in Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k1112(b)(2) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines expects that the principal amount of the Loan (or portion of the Loan included in such Securitization) together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such Securitization and at any time during which the Loan (or apportion of the Loan included in such Securitization) and any Related Loans are included in a Securitization does, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, the . Such financial data or financial statements required under Item 1112(b)(2shall be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of Regulation AB (which includes, but may not be limited to, a balance sheet this sentence with respect to the entity that Lender determines to be a Significant Obligor any period for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties which an Exchange Act Filing is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if required. If requested by Lender, and to the extent not prohibited by any applicable lease, other agreement or order, Borrower shall, promptly upon Lender’s request, shall furnish to Lender financial data or and/or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant tenant of any of the Properties if, in connection with a Securitization, Lender reasonably determines expects there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant tenant or group of Affiliated Tenants affiliated tenants, a concentration within all of the mortgage loans included or expected to be included included, as applicable, in the Securitization such that such Tenant tenant or group of Affiliated Tenants affiliated tenants would constitute a Significant Obligor.
(d) All financial data and financial statements provided by Borrower hereunder pursuant to Section 11.1(c) and (d) hereof shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in Section 11.1(c) above shall be audited by independent accountants of Borrower (which accountants shall furnish be acceptable to Lender) in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in connection with any Disclosure Document and any Exchange Act Filing and to the preparation use of the Disclosure Documents name of such independent accountants and on an ongoing basis, financial data and/or financial statements with respect the reference to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, independent accountants as specified by Lender, but only for so long as such entity or entities are a Significant Obligor “experts” in any Disclosure Document and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) , all of which shall be provided at the same time as the related financial statements are required to be made provided. All financial data and financial statements (audited or unaudited) provided by Borrower under applicable Legal Requirements or (ySection 11.1(c) comparable information is required to otherwise shall be “available” to holders accompanied by an Officer’s Certificate stating that such financial statements meet the requirements set forth in the first sentence of the Securities under Regulation AB or applicable Legal Requirementsthis Section 11.1(d).
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request thereforpromptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, AB or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements and (if applicable) related accountants’ reports and consents required in order to comply with Regulation AB or any amendment, modification or replacement of Regulation AB or with other legal requirements are other than as provided herein, then notwithstanding the provisions of Section 11.1(c) and (d), Lender may request, and Borrower shall promptly provide, such other financial statements and (if applicable) related accountants’ reports and consents as Lender determines to be necessary or appropriate for such compliance.
Appears in 1 contract
Sources: Loan Agreement (Brookfield DTLA Fund Office Trust Investor Inc.)
Securitization. (a) Lender shall have The Loan Parties hereby acknowledge that the right (i) to Lenders and their Affiliates may sell or otherwise transfer securitize the Term Loan (a "Securitization") through the pledge of the Term Loan as collateral security for loans to the Lenders or their Affiliates or through the sale of the Term Loan or any portion thereof as a whole loan, (ii) to sell participation the issuance of direct or indirect interests in the Term Loan, which loans to the Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the "Rating Agencies"). The Loan Parties shall use reasonable efforts cooperate with the Lenders and their Affiliates to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Loan Parties and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Loan Parties under the Loan Documents or change or affect in a manner adverse to the Loan Parties the financial terms of the Term Loan, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Term Loan or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Term Loan a certificate (including, without limitationi) agreeing to indemnify the Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "Securitization Parties") for any losses, claims, damages or liabilities (Athe "Liabilities") confirm that to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause in any writing delivered by or on behalf of any Loan Party to the initial weighted average Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Lenders or their successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Term Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Lender shall have The Loan Parties hereby acknowledge that the right (i) to Lenders and their Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by ▇▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes Standard & Poor's or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the "Rating Agencies"). The Loan Parties shall use reasonable efforts cooperate with the Lenders and their Affiliates to provide information in effect the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose additional costs on the Loan;
Loan Parties and (ii) provide any such amendment or additional documentation does not adversely affect the rights, or increase the obligations, of the Loan Parties under the Loan Documents or change or affect in a manner adverse to the Loan Parties the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "Securitization Parties") for any losses, claims, damages or liabilities (Athe "Liabilities") confirm that to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of the closing date or are based upon any untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause in any writing delivered by or on behalf of any Loan Party to the initial weighted average Lenders in connection with any Loan Document or arise out of or are based upon the omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Lenders or their successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower Loans and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Lender shall have The Borrower hereby acknowledges that the right (i) to Lenders and their Affiliates may sell or otherwise transfer securitize the Loan Loans (a ”Securitization”) through the pledge of the Loans as collateral security for loans to the Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lenders or their Affiliates or direct or indirect interests will be rated by ▇▇▇▇▇’▇, Standard & Poor’s or one or more other rating agencies (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising The Borrower shall cooperate with the Loan may be subject Lenders and their Affiliates to one or more Secondary Market Transactions.
(b) If requested by Lender, effect the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Loan Parties and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Loan Parties under the Loan Documents or change or affect in a manner adverse to the Loan Parties the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (A) confirm that insofar as arising out of any of the closing date matters described below, the ”Liabilities”) to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any Secondary Market Transaction, the representations and warranties as set forth material fact by any Loan Party contained in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause in any writing delivered by or on behalf of any Loan Party to the initial weighted average Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the interest rates for all Components in circumstances under which they were made, not misleading, and such indemnity shall survive any transfer by the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate Lenders or their successors or assigns of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower Loans and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Borrower acknowledges and agrees that Lender shall have the right may, at its sole cost and expense other than as set forth in Section 11.1(g) hereof, (i) to sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any portion thereof as a whole loanof the Loan and the Loan Documents, (ii) to sell participation interests in the Loan, Loan or (iii) to securitize consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the Loan “Securities”) secured by or evidencing ownership interests in all or any portion thereof in a single asset securitization of the Loan and the Loan Documents or a pooled loan securitization. pool of assets that include the Loan and the Loan Documents (The the transactions referred to in clauses (i), (ii) ), and (iii) above are each hereinafter herein referred to collectively as a “Secondary Market TransactionTransactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender▇▇▇▇▇▇, the Loan Parties Borrower shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by assist Lender in order to satisfy the satisfying customary market standards to which Lender customarily adheres or which may be reasonably required in the marketplace, marketplace or by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace Agencies in connection with any Secondary Market Transactions, including including, without limitation, to:
(i) provide (A) provide updated financial and other information with respect to the PropertiesProperty, the business operated at the PropertiesProperty, Borrower, Sponsor and the each Mezzanine Borrower, Guarantor, SPE Component Entity, Mezzanine SPE Component Entity, Manager, including, without limitationthe Management Agreements, the information set forth on Exhibit C attached heretoProperty Documents, the PILOT Leases, the PILOT Documents and any Tenant, (B) provide updated budgets and other information (to extent required by investors or Rating Agencies) relating to the Properties Property, (C) updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”) which were obtained in connection ), together, if customary, with the origination appropriate verification of the LoanUpdated Information through letters of auditors or opinions of counsel acceptable to Lender and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) provide (A) an updated Insolvency Opinion, and (B) new and/or updated opinions of counsel, which may be relied upon by ▇▇▇▇▇▇, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing DateAffiliates, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) (A) confirm that as of the closing date of any Secondary Market Transactionprovide updated, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such Transaction, representations and warranties are made in the Loan Documents and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute such amendments to the Loan Documents Documents, Mezzanine Loan Documents, the Property Documents, and ▇▇▇▇▇▇▇▇’s, each Mezzanine Borrower’s, any SPE Component Entity’s or any Mezzanine SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect any Secondary Market Transaction, including, without limitation, (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into (I) one or more participations or (II) one or more component and/or additional separate notes and/or creating additional senior/subordinate note structure(s) and reallocating the principal amount of the Loan and the Spread among such components and/or notes evidencing the Loan Parties’ organizational documents requested and/or the Mezzanine Loans, including, without limitation, reallocation of the amount of Note A and Note B and/or adjustment the interest rates thereon (any of the foregoing, a “Loan Bifurcation”) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by Lenderup to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average require amortization of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed Loan, change the weighted average interest rate of Spread or the original Components stated maturity (except as provided in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, subclause (C) above) (it being agreed that that the weighted average Spread may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan or the Mezzanine Loans and (y) any applications to principal during the continuance of an Event of Default or a Mezzanine Loan Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or reallocation shall require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date)Loan, (Eiii) change there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the form of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any Stated Maturity Date amendment which increases Borrower’s or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor Guarantor’s liability under the Loan DocumentsDocuments in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, at all times the weighted average Interest Rate of all components of the Loan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any prepayment of the Loan and (y) any applications to principal during the continuance of an Event of Default.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines expects that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties Property alone or the Properties Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (without duplication and to the following financial information:
extent not previously provided) (i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB, if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, net operating income for or (ii) the Properties and the Related Properties for the most recent Fiscal Year and interim period as financial statements required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k1112(b)(2) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines expects that the principal amount of the Loan together with any Related Loans, Loans as of the cut-off date for such SecuritizationSecuritization may, may or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included included, as applicable, in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender . Such financial data or financial statements meeting the requirements of Item 1112(b)(1shall be furnished to Lender (A) or within ten (210) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Business Days after notice from Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and on an ongoing basis(C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data and/or or financial statements pursuant to clauses (B) or (C) of this sentence with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only any period for so long as such entity or entities are which a Significant Obligor and either (x) filings filing pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) is not required. If requested by ▇▇▇▇▇▇, Borrower shall furnish to Lender financial data and/or financial statements for any tenant of the Property (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(d) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section shall be audited by Deloitte, Ernst & Young, RSM McGladrey, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, PwC or other independent certified public accountant reasonably approved by Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be made provided. All financial data and statements (audited or unaudited) provided by Borrower under applicable Legal Requirements or this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirementsd).
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender▇▇▇▇▇▇, Borrower shall provide Lender, within a reasonable period of time following Lender’s request thereforpromptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, AB or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender, in each case, to the extent reasonably available to Borrower.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements as Lender determines to be necessary or appropriate for such compliance, in each case, to the extent reasonably available to Borrower.
(g) All reasonable out-of-pocket third-party costs and expenses incurred by ▇▇▇▇▇▇▇▇ and Guarantor in connection with Borrower’s compliance with requests made under this Article 11 (including any documentary stamp, intangible or other mortgage taxes) and any fees and expenses of the Rating Agencies incurred in connection with a syndication and/or Securitization of the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. In addition, Borrower and Guarantor shall be responsible for the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to requests made pursuant to Section 11.1, Section 11.2, and Section 11.6.
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Securitization. Each Borrower hereby acknowledges that each Lender with a Term Loan B (aa “Securitizing Lender”) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan, or (iii) to may securitize the Term Loan or any portion thereof in a single asset securitization or a pooled loan securitization. B (The transactions referred to in clauses (i), (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates) through the pledge of the Term Loan B as collateral security for loans to such Securitizing Lender or its Affiliates or Related Funds or through the sale of the Term Loan B or the issuance of direct or indirect interests in the Term Loan B, notes which loans to such Securitizing Lender or its Affiliates or Related Funds or direct or indirect interests will be rated by ▇▇▇▇▇’▇, S&P or one or more other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as rating agencies (the “SecuritiesRating Agencies”). At Lender’s election, each note and/or component comprising Each Borrower agrees to cooperate with such Securitizing Lender and its Affiliates and Related Funds to effect the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the Rating Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial and other information with respect to the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, the information set forth on Exhibit C attached heretoby (a) executing such additional documents, and (B) provide updated budgets and other information (to extent required as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained such Securitizing Lender in connection with the origination of the Loan;
Securitization, provided that (i) any such additional documentation does not impose material additional costs on such Borrower, and (ii) provide any such additional documentation does not materially adversely affect the rights, or increase the obligations, of such Borrower under the Loan Documents or change or affect in a manner adverse to such Borrower the financial terms of the Term Loan B, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by such Securitizing Lender in connection with the rating of the Term Loan B or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Term Loan B a certificate (including, without limitationi) agreeing to indemnify such Securitizing Lender and any of its Affiliates and Related Funds, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the “Securitization Parties”) for any losses, claims, damages or liabilities (Athe “Securitization Liabilities”) confirm that to which such Securitizing Lender or any of its Affiliates or Related Funds, or such Securitization Parties, may become subject insofar as the Securitization Liabilities arise out of or are based upon a breach of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date contained in which case confirmation as to truth, completeness Section 4.18 and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if agreeing to reimburse such Securitizing Lender and its Affiliates and Related Funds, and such Securitization Parties, for any legal or other out-of-pocket expenses reasonably determines that incurred by such Persons in connection with defending the principal amount of Securitization Liabilities. Notwithstanding the Loan together with any Related Loansforegoing, as of (x) this Section 2.16 is subject to Borrowers’, Agent’s and the cut-off date for such SecuritizationRequired Lenders’ rights and obligations under Sections 13, may equal or exceed twenty percent (20%) of the aggregate principal amount of 14, and 15.11 hereof in all mortgage loans included or expected to be included respects and, in the Securitizationevent of a direct conflict between this Section 2.16 and any provision of Section 13, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet 14 or 15.11 with respect to Borrowers’, Agent’s or the entity Required Lenders’ rights and obligations, it is the intent of the parties that Lender determines to be a Significant Obligor for the two most recent Fiscal Years applicable provision of Section 13, 14 or 15.11 shall control and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-Xgovern, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, in connection with a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders no such Securitization by a Securitizing Lender shall release such Securitizing Lender from any of the Securities under Regulation AB its obligations hereunder or applicable Legal Requirements.
(e) If Lender determines that Borrower alone substitute any pledgee, secured party or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, party to such Securitization for such Securitizing Lender as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lenderparty hereto.
Appears in 1 contract
Sources: Credit Agreement (Buca Inc /Mn)
Securitization. (a) Lender shall have The Borrower hereby acknowledges that the right (i) to Lenders and their Affiliates may sell or otherwise transfer securitize the Loan Loans (a "Securitization") through the pledge of the Loans as collateral security for loans to the Lenders or any portion thereof as a whole loan, (ii) to sell participation their Affiliates or through the sale of the Loans or the issuance of direct or indirect interests in the LoanLoans, which loans to the Lenders or (iii) to securitize the Loan their Affiliates or any portion thereof in a single asset securitization direct or a pooled loan securitization. (The transactions referred to in clauses (i)indirect interests will be rated by M▇▇▇▇'▇, (ii) and (iii) are each hereinafter referred to as a “Secondary Market Transaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes S&P or other securities issued in connection with a Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
other rating agencies (b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be required in the marketplace, by prospective investors, the "Rating Agencies, applicable Legal Requirements and/or otherwise in "). The Borrower shall cooperate with the marketplace in connection with any Secondary Market Transactions, including to:
(i) (A) provide updated financial Lenders and other information with respect their Affiliates to effect the Properties, the business operated at the Properties, Borrower, Sponsor and the Manager, Securitization including, without limitation, by (a) amending this Agreement and the information set forth on Exhibit C attached heretoother Loan Documents, and (B) provide updated budgets and other information (to extent required executing such additional documents, as reasonably requested by investors or Rating Agencies) relating to the Properties (the “Updated Information”) which were obtained Lenders in connection with the origination of Securitization, provided that (i) any such amendment or additional documentation does not impose material additional costs on the Loan;
Borrower and (ii) provide any such amendment or additional documentation does not materially adversely affect the rights, or materially increase the obligations, of the Borrower under the Loan Documents or change or affect in a manner adverse to the Borrower the financial terms of the Loans, (Ab) an updated Insolvency Opinionproviding such information as may be reasonably requested by the Lenders in connection with the rating of the Loans or the Securitization, and (Bc) updated opinions of Borrower’s and Guarantors’ New York and Delaware counsel, substantially the same as those delivered as of the Closing Date, which opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan providing in connection with any Secondary Market Transaction rating of the Loans a certificate (including, without limitationi) agreeing to indemnify the Lenders and their Affiliates, any “B Note” purchasers), or otherwise reasonably satisfactory to Lender and of the Rating Agencies;
, or any party providing credit support or otherwise participating in the Securitization (iiicollectively, the "Securitization Parties") for any losses, claims, damages or liabilities (Athe "Liabilities") confirm that to which the Lenders, their Affiliates or such Securitization Parties may become subject insofar as the Liabilities arise out of or are based upon any untrue statement or alleged untrue statement of any material fact by Borrower or any Affiliate of Borrower contained in any Loan Document or in any writing delivered by or on behalf of the Borrower or any Affiliate of the Borrower to the Lenders in connection with any Loan Document or arise out of or are based upon the omission or alleged omission by Borrower or any Affiliate of Borrower to state therein a material fact required to be stated therein, or necessary in order to make the statements therein, in light of the circumstances under which they were made and as of the closing date of time made not misleading, and such indemnity shall survive any Secondary Market Transaction, transfer by the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as Lenders or their successors or assigns of the closing date of the Secondary Market Transaction (except to the extent that any such representations Loans and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may customarily require; and
(iv) execute amendments to the Loan Documents and the Loan Parties’ organizational documents requested by Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (A) cause the initial weighted average of the interest rates for all Components in the aggregate immediately after the effective date of such modification to exceed the weighted average interest rate of the original Components in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or any Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that agreeing to reimburse the principal amount of the Loan together with Lenders and their Affiliates for any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, legal or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required expenses reasonably incurred by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of the Properties if, such Persons in connection with a Securitization, Lender reasonably determines there to be, as of defending the cutoff date for such Securitization, a concentration with respect to such Tenant or group of Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall furnish to Lender, in connection with the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal RequirementsLiabilities.
(e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Properties alone or the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall provide Lender, within a reasonable period of time following Lender’s request therefor, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to be required pursuant to Regulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
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Sources: Credit Agreement (Dune Energy Inc)