Conditions for Release. Notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, Adjacent Borrower shall have the right, without the prior consent of Lender and without violating the Loan Documents, to (1) sell one or more portions of the Remaining Adjacent Parcel (each, including the entire Remaining Adjacent Parcel, a “Partial Adjacent Parcel”) either to a bonafide third party purchaser (a “Bonafide Adjacent Parcel Purchaser”) or to an Affiliate of Borrower or any other Restricted Party (an “Affiliate Adjacent Parcel Purchaser”; and together with a Bonafide Adjacent Parcel Purchaser, individually, an “Adjacent Parcel Purchaser”), or (2) refinance one or more Partial Adjacent Parcels (each of the foregoing, including a sale or refinancing of the entire Remaining Adjacent Parcel, an “Adjacent Parcel Sale”, it being agreed that, for purposes of this Section 2.5.2, a refinancing of a Partial Adjacent Parcel, including the entire Remaining Adjacent Parcel, shall be treated as an Adjacent Parcel Sale thereof to an Affiliate Adjacent Parcel Purchaser), and obtain a release of such Partial Adjacent Parcel from the Liens of the Mortgage and the other Loan Documents encumbering such Partial Adjacent Parcel, provided that all of the following conditions shall be satisfied with respect to each such Adjacent Parcel Sale: (i) At least ten (10) Business Days prior to the anticipated date of such Adjacent Parcel Sale, Adjacent Borrower shall have submitted a Sale Request to Lender, specifically identifying and legally describing the Partial Adjacent Parcel that Adjacent Borrower intends to sell, which proposed Partial Adjacent Parcel shall, unless it is the entire Remaining Adjacent Parcel, be reasonably acceptable to Lender taking into account its potential impact on the value of the remaining portions of the Remaining Adjacent Parcel and the Release Parcel, which Sale Request shall include a copy of the contract of sale relating to such Adjacent Parcel Sale and an Officer’s Certificate providing a certification that (A) as of the date of such Sale Request, no monetary Default nor any Event of Default shall have occurred and be continuing, (B) the proposed purchaser is a Bonafide Adjacent Parcel Purchaser or an Affiliate Adjacent Parcel Purchaser, as applicable, and (C) the copy of the contract of sale relating to such Adjacent Parcel Sale attached to such certification is true, correct and complete; (ii) Adjacent Borrower shall have delivered to Lender reasonably detailed information regarding the terms of, and the actual and reasonably anticipated costs and expenses associated with, such Adjacent Parcel Sale in order to enable Lender to reasonably determine the Adjacent Parcel Release Price with respect thereto, all of which shall be certified by Adjacent Borrower to Lender as true, complete and correct; (iii) All accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Loan and any other sum then due hereunder or under any of the other Loan Documents, including, without limitation, any applicable Breakage Costs, shall have been paid in full or shall have been arranged to be paid in full contemporaneously with the closing of such Adjacent Parcel Sale; provided, however, if such Adjacent Parcel Sale closes on a date which is not a Payment Date, Borrowers shall also have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale interest on the Adjacent Parcel Release Price to, but not including, the next succeeding ninth (9th) day of a calendar month; (iv) If the closing of such Adjacent Parcel Sale shall occur prior to the Prepayment Fee Release Date, Borrowers shall have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale the Prepayment Fee based on the amount of the applicable Adjacent Parcel Release Price; (v) If the Adjacent Parcel Purchaser is a Bonafide Adjacent Parcel Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale, to Lender a release price with respect to the sale of such Partial Adjacent Parcel equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, such Partial Adjacent Parcel’s “Bonafide Adjacent Parcel Release Price”), which Bonafide Adjacent Parcel Release Price shall be applied as contemplated by Section 2.4.3 hereof: (A) (1) the gross sales price for such Partial Adjacent Parcel, less (2) the amount of all reasonable and customary closing costs in connection with such Adjacent Parcel Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed eight percent (8%) of such gross sales price; or (B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent Parcel; (vi) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale, to Lender a release price with respect to the sale of such Partial Adjacent Parcel equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “Affiliate Adjacent Parcel Release Price”; and whichever of the Bonafide Adjacent Parcel Release Price or the Affiliate Adjacent Parcel Release Price shall be applicable in any instance, the “Adjacent Parcel Release Price”), which Affiliate Adjacent Parcel Release Price shall be applied as contemplated by Section 2.4.3 hereof: (A) Eighty-five percent (85%) of the Appraised Value of such Partial Adjacent Parcel; or (B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent Parcel; (vii) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, simultaneously with the closing of such Adjacent Parcel Sale, (A) if such Adjacent Parcel Purchaser is a Joint Venture, at Lender’s election, the ownership interest(s) of any Affiliate Joint Venture Counterparty shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have (1) obtained the consent of each Unaffiliated Joint Venture Counterparty to such pledge, and (2) executed and delivered, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to execute and deliver, such documents and instruments, and taken such further actions, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to take any such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge of the ownership interest(s) of any Affiliate Joint Venture Counterparty, or (B) if such Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser of any kind, whether or not a Joint Venture, at Lender’s election, which in the case of an Adjacent Parcel Purchaser who is a Joint Venture, would be in lieu of the foregoing clause (A), a security interest in any future sales proceeds from the sale of such Partial Adjacent Parcel shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have executed such documents and instruments, and taken such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge; provided, however, that in the case of either clause (A) or clause (B) above, such pledge (y) shall not prohibit, or require Lender’s consent to, a subsequent sale by the Adjacent Parcel Purchaser of such Partial Adjacent Parcel, but shall only require that the net proceeds of any such subsequent sale which are payable to such Adjacent Parcel Purchaser be delivered to Lender and be used as a prepayment of the Loan pursuant to the same terms and conditions as governed the payment of the Adjacent Parcel Release Price that was paid in connection with such Partial Adjacent Parcel (it being understood that any such net proceeds of any such subsequent sale shall be deemed a part of the previously-paid Adjacent Parcel Release Price for such Partial Adjacent Parcel for all purposes under this Agreement), and (z) shall terminate upon the earlier of (I) one (1) year from the date of such Partial Adjacent Sale or (II) the repayment in full of the Debt; (viii) If the Adjacent Parcel Purchaser is a Bonafide Adjacent Parcel Purchaser, if such Bonafide Adjacent Parcel Purchaser finances such Adjacent Parcel Sale, Borrowers shall have caused such Bonafide Adjacent Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Bonafide Adjacent Parcel Purchaser shall have complied with the terms of, a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Article XIII hereof (except only with respect to the particular Adjacent Parcel Sale and not with respect to a total Refinancing Loan); (ix) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, if such Affiliate Adjacent Parcel Purchaser finances such Adjacent Parcel Sale, Borrowers shall have caused such Affiliate Adjacent Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Affiliate Adjacent Parcel Purchaser shall have complied with the terms of, (A) a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVII attached hereto and made a part hereof, and (B) a right of last look with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVIII attached hereto and made a part hereof; (x) Borrowers shall have paid all of the actual out-of-pocket reasonable third party legal fees and actual out-of-pocket reasonable third party expenses incurred by Lender in connection with (A) reviewing and processing any Sale Request with respect to an Adjacent Parcel Sale, whether or not the Adjacent Parcel Sale which is the subject of a Sale Request actually closes, (B) the satisfaction of any of the conditions set forth in this Section 2.5.2(a), and (C) providing all release documents in connection with any Adjacent Parcel Sale as provided in Section 2.5.2(d) hereof; (xi) No monetary Default nor any Event of Default shall have occurred and be continuing at the time of the submission by Adjacent Borrower of a Sale Request or at the time of the closing of such Adjacent Parcel Sale; (xii) After giving effect to the sale and release of such Partial Adjacent Parcel, the then remaining portions of the Release Parcel and the Remaining Adjacent Parcel will each (A) comply, in all material respects, with all zoning ordinances, including, without limitation, those related to parking, lot size and density, (B) constitute one or more separate tax parcels, and not be subject to any lien for taxes due or not yet due attributable to such Partial Adjacent Parcel, and (C) comply, in all material respects, with all applicable Legal Requirements, including, without limitation, those relating to land use and certificates of occupancy, except to the extent of any legal non-conforming use permitted as of the Closing Date; (xiii) Adjacent Borrower shall have certified to Lender that, with respect to the then remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, it continues to have or has obtained through one or more reciprocal easement or other agreements approved by Lender in its reasonable judgment, substantially the same (A) access for all of the Improvements on such remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel to parking, vehicular and pedestrian ingress and egress from public roads and common areas, and (B) utility services in all of the Improvements on such remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, in each instance as exists as of the date immediately preceding such Adjacent Parcel Sale, it being agreed that Lender will subordinate the lien of the Mortgage to any such reciprocal easement agreement or other agreement approved by Lender in its reasonable judgment; (xiv) Borrowers shall deliver to Lender, at Borrowers’ sole cost and expense, new or updated ALTA/ASCM surveys of the remaining portion of the Remaining Adjacent Parcel and such Partial Adjacent Parcel, which surveys shall substantially conform to Lender’s then-current requirements for surveys to be delivered in connection with its loans; (xv) The Title Company shall issue an endorsement to the Title Insurance Policy regarding the validity of Lender’s lien on the remaining portion of the Remaining Adjacent Parcel after such Adjacent Parcel Sale and any other endorsements reasonably requested by Lender in connection with such Adjacent Parcel Sale; (xvi) If a Securitization has occurred and the Adjacent Parcel Sale covers less than the entire Remaining Adjacent Parcel, Borrowers shall have provided to Lender an opinion letter from counsel reasonably satisfactory to Lender confirming that such Adjacent Parcel Sale shall not constitute a “significant modification” of the Loan within the meaning of Section 1.1001-3 of the regulations of the United States Department of the Treasury or would otherwise violate any of the REMIC Requirements, and Lender shall not otherwise have any reasonable belief (based on an opinion of counsel or a certified public accountant) that such Adjacent Parcel Sale will constitute such a “significant modification” or otherwise violate such REMIC Requirements; (xvii) Such Adjacent Parcel Sale shall not occur until either (A) Borrowers shall have delivered the Relinquishment Notice, or (B) the Qualification Conditions have not been satisfied on or prior to the Construction Qualification Date; (xviii) Borrowers shall have paid the Non-Qualified Mandatory Prepayment or shall have delivered a Non-Qualified Prepayment Letter of Credit in lieu thereof, in either instance, on or before the date required under, and otherwise in accordance with the terms of, Section 2.4.2(c) hereof; and (xix) Borrowers shall have delivered to Lender (A) any amendments to the Loan Documents deemed reasonably necessary by Lender in order to effectuate the release of such Partial Adjacent Parcel and/or to continue to retain all of its rights in the remaining portion of Remaining Adjacent Parcel and/or the Release Parcel, and (B) all documents and information reasonably requested by Lender in order to verify the satisfaction of the foregoing conditions.
Appears in 1 contract
Conditions for Release. Notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, Adjacent Borrower shall have the right, without the prior consent of Lender and without violating the Loan Documents, to (1) sell one or more portions of the Remaining Adjacent Release Parcel (each, including the entire Remaining Adjacent Release Parcel, a “Partial Adjacent Release Parcel”) either to a bonafide third party purchaser (a “Bonafide Adjacent Release Parcel Purchaser”) or to an Affiliate of Borrower or any other Restricted Party (an “Affiliate Adjacent Release Parcel Purchaser”; and together with a Bonafide Adjacent Release Parcel Purchaser, individually, an a “Adjacent Release Parcel Purchaser”), or (2) refinance one or more Partial Adjacent Release Parcels (each of the foregoing, including a sale or refinancing of the entire Remaining Adjacent Release Parcel, an a “Adjacent Release Parcel Sale”, it being agreed that, for purposes of this Section 2.5.22.5.1, a refinancing of a Partial Adjacent Release Parcel, including the entire Remaining Adjacent Release Parcel, shall be treated as an Adjacent a Release Parcel Sale thereof to an Affiliate Adjacent Release Parcel Purchaser), and obtain a release of such Partial Adjacent Release Parcel from the Liens of the Mortgage and the other Loan Documents encumbering such Partial Adjacent Release Parcel, provided that all of the following conditions shall be satisfied with respect to each such Adjacent Release Parcel Sale:
(i) At least ten (10) Business Days prior to the anticipated date of such Adjacent Release Parcel Sale, Adjacent Borrower shall have submitted to Lender a written request for release (a “Sale Request to LenderRequest”), specifically identifying and legally describing the Partial Adjacent Release Parcel that Adjacent Borrower intends to sell, which proposed Partial Adjacent Release Parcel shall, unless it is the entire Remaining Adjacent Release Parcel, be reasonably acceptable to Lender taking into account its potential impact on the value of the remaining portions of the Remaining Adjacent Release Parcel and the Release Remaining Adjacent Parcel, which Sale Request shall include a copy of the contract of sale relating to such Adjacent Release Parcel Sale and an Officer’s Certificate providing a certification that (A) as of the date of such Sale Request, no monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default nor any or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing, (B) the proposed purchaser is a Bonafide Adjacent Release Parcel Purchaser or an Affiliate Adjacent Release Parcel Purchaser, as applicable, and (C) the copy of the contract of sale relating to such Adjacent Release Parcel Sale attached to such certification is true, correct and complete;
(ii) Adjacent Borrower shall have delivered to Lender reasonably detailed information regarding the terms of, and the actual and reasonably anticipated costs and expenses associated with, such Adjacent Release Parcel Sale in order to enable Lender to reasonably determine the Adjacent Release Parcel Release Price with respect thereto, all of which shall be certified by Adjacent Borrower to Lender as true, complete and correct;
(iii) All accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Reduced Acquisition Loan and/or the Construction Loan and/or the First Mezzanine Loan and/or the Second Mezzanine Loan and/or the Third Mezzanine Loan and any other sum then due hereunder or under any of the other Loan Documents and/or under any of the First Mezzanine Loan Documents and/or under any of the Second Mezzanine Loan Documents and/or under any of the Third Mezzanine Loan Documents, including, without limitation, any applicable Breakage Costs, shall have been paid in full or shall have been arranged to be paid in full contemporaneously with the closing of such Adjacent Release Parcel Sale; provided, however, if such Adjacent Release Parcel Sale closes on a date which is not a Payment Date, Borrowers shall also have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Release Parcel Sale interest on the Adjacent Release Parcel Release Price to, but not including, the next succeeding ninth (9th) day of a calendar month;
(iv) If the closing of such Adjacent Release Parcel Sale shall occur prior to the Prepayment Fee Release Date, Borrowers shall have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Release Parcel Sale the Prepayment Fee based on the amount of the applicable Adjacent Release Parcel Release Price;
(v) If the Adjacent Release Parcel Purchaser is a Bonafide Adjacent Release Parcel Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Release Parcel Sale, to Lender a release price with respect to the sale of such Partial Adjacent Release Parcel equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, such Partial Adjacent Release Parcel’s “Bonafide Adjacent Release Parcel Release Price”), which Bonafide Adjacent Release Parcel Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) (1) the gross sales price for such Partial Adjacent Release Parcel, less (2) the amount of all reasonable and customary closing costs in connection with such Adjacent Release Parcel Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed eight percent (8%) of such gross sales price; or
(B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent Release Parcel;
(vi) If the Adjacent Release Parcel Purchaser is an Affiliate Adjacent Release Parcel Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Release Parcel Sale, to Lender a release price with respect to the sale of such Partial Adjacent Release Parcel equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “Affiliate Adjacent Release Parcel Release Price”; and whichever of the Bonafide Adjacent Release Parcel Release Price or the Affiliate Adjacent Release Parcel Release Price shall be applicable in any instance, the “Adjacent “ Release Parcel Release Price”), which Affiliate Adjacent Release Parcel Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) Eighty-five percent (85%) of the Appraised Value of such Partial Adjacent Release Parcel; or
(B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent Release Parcel;
(vii) If the Adjacent Release Parcel Purchaser is an Affiliate Adjacent Release Parcel Purchaser, simultaneously with the closing of such Adjacent Release Parcel Sale, (A) if such Adjacent Release Parcel Purchaser is a Joint Venture, at Lender’s election, the ownership interest(s) of any Affiliate Joint Venture Counterparty shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have (1) obtained the consent of each Unaffiliated Joint Venture Counterparty to such pledge, and (2) executed and delivered, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to execute and deliver, such documents and instruments, and taken such further actions, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to take any such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge of the ownership interest(s) of any Affiliate Joint Venture Counterparty, or (B) if such Adjacent Release Parcel Purchaser is an Affiliate Adjacent Release Parcel Purchaser of any kind, whether or not a Joint Venture, at Lender’s election, which in the case of an Adjacent a Release Parcel Purchaser who is a Joint Venture, would be in lieu of the foregoing clause (A), a security interest in any future sales proceeds from the sale of such Partial Adjacent Release Parcel shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have executed such documents and instruments, and taken such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge; provided, however, that in the case of either clause (A) or clause (B) above, such pledge (y) shall not prohibit, or require Lender’s consent to, a subsequent sale by the Adjacent Release Parcel Purchaser of such Partial Adjacent Release Parcel, but shall only require that the net proceeds of any such subsequent sale which are payable to such Adjacent Release Parcel Purchaser be delivered to Lender and be used as a prepayment of the Loan pursuant to the same terms and conditions as governed the payment of the Adjacent Release Parcel Release Price that was paid in connection with such Partial Adjacent Release Parcel (it being understood that any such net proceeds of any such subsequent sale shall be deemed a part of the previously-paid Adjacent Release Parcel Release Price for such Partial Adjacent Release Parcel for all purposes under this Agreement), and (z) shall terminate upon the earlier of (I) one (1) year from the date of such Partial Adjacent Release Parcel Sale or (II) the repayment in full of the Debt;
(viii) If the Adjacent Release Parcel Purchaser is a Bonafide Adjacent Release Parcel Purchaser, if such Bonafide Adjacent Release Parcel Purchaser finances such Adjacent Release Parcel Sale, Borrowers shall have caused such Bonafide Adjacent Release Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Bonafide Adjacent Release Parcel Purchaser shall have complied with the terms of, a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Article XIII hereof (except only with respect to the particular Adjacent Release Parcel Sale and not with respect to a total Refinancing Loan);
(ix) If the Adjacent Release Parcel Purchaser is an Affiliate Adjacent Release Parcel Purchaser, if such Affiliate Adjacent Release Parcel Purchaser finances such Adjacent Release Parcel Sale, Borrowers shall have caused such Affiliate Adjacent Release Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Affiliate Adjacent Release Parcel Purchaser shall have complied with the terms of, (A) a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVII attached hereto and made a part hereof, and (B) a right of last look with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVIII attached hereto and made a part hereof;
(x) Borrowers shall have paid all of the actual out-of-pocket reasonable third party legal fees and actual out-of-pocket reasonable third party expenses incurred by Lender in connection with (A) reviewing and processing any Sale Request with respect to an Adjacent a Release Parcel Sale, whether or not the Adjacent Release Parcel Sale which is the subject of a Sale Request actually closes, (B) the satisfaction of any of the conditions set forth in this Section 2.5.2(a2.5.1(a), and (C) providing all release documents in connection with any Adjacent Release Parcel Sale as provided in Section 2.5.2(d2.5.1(d) hereof;
(xi) No monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default nor any or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing at the time of the submission by Adjacent Borrower of a Sale Request or at the time of the closing of such Adjacent Release Parcel Sale;
(xii) After giving effect to the sale and release of such Partial Adjacent Release Parcel, the then remaining portions of the Release Parcel and the Remaining Adjacent Parcel will each (A) comply, in all material respects, with all zoning ordinances, including, without limitation, those related to parking, lot size and density, (B) constitute one or more separate tax parcels, and not be subject to any lien for taxes due or not yet due attributable to such Partial Adjacent Release Parcel, and (C) comply, in all material respects, with all applicable Legal Requirements, including, without limitation, those relating to land use and certificates of occupancy, except to the extent of any legal non-conforming use permitted as of the Closing Date;
(xiii) Adjacent Borrower shall have certified to Lender that, with respect to the then remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, it continues to have or has obtained through one or more reciprocal easement or other agreements approved by Lender in its reasonable judgment, substantially the same (A) access for all of the Improvements on such remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel to parking, vehicular and pedestrian ingress and egress from public roads and common areas, and (B) utility services in all of the Improvements on such remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, in each instance as exists as of the date immediately preceding such Adjacent Release Parcel Sale, it being agreed that Lender will subordinate the lien of the Mortgage to any such reciprocal easement agreement or other agreement approved by Lender in its reasonable judgment;
(xiv) Borrowers shall deliver to Lender, at Borrowers’ sole cost and expense, new or updated ALTA/ASCM surveys of the remaining portion of the Remaining Adjacent Release Parcel and such Partial Adjacent Release Parcel, which surveys shall substantially conform to Lender’s then-current requirements for surveys to be delivered in connection with its loans;
(xv) The Title Company shall issue an endorsement to the Title Insurance Policy regarding the validity of Lender’s lien on the remaining portion of the Remaining Adjacent Release Parcel after such Adjacent Release Parcel Sale and any other endorsements reasonably requested by Lender in connection with such Adjacent Release Parcel Sale;
(xvi) If a Securitization has occurred and the Adjacent Release Parcel Sale covers less than the entire Remaining Adjacent Release Parcel, Borrowers shall have provided to Lender an opinion letter from counsel reasonably satisfactory to Lender confirming that such Adjacent Release Parcel Sale shall not constitute a “significant modification” of the Loan within the meaning of Section 1.1001-3 of the regulations of the United States Department of the Treasury or would otherwise violate any of the provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Section 860A through 860G of Subchapter M of Chapter 1 of the Code, as amended, and related provisions and regulations (including any applicable proposed regulations) and rulings promulgated thereunder, as the foregoing may be in effect from time to time (collectively, the “REMIC Requirements”), and Lender shall not otherwise have any reasonable belief (based on an opinion of counsel or a certified public accountant) that such Adjacent Release Parcel Sale will constitute such a “significant modification” or otherwise violate such REMIC Requirements;
(xvii) Such Adjacent Parcel Sale shall not occur until either (A) Borrowers shall have delivered the Relinquishment Notice, or (B) the Qualification Conditions have not been satisfied on or prior to the Construction Qualification Date;
(xviii) Borrowers shall have paid the Non-Qualified Mandatory Prepayment or shall have delivered a Non-Qualified Prepayment Letter of Credit in lieu thereof, in either instance, on or before the date required under, and otherwise in accordance with the terms of, Section 2.4.2(c) hereof; and
(xixxvii) Borrowers shall have delivered to Lender (A) any amendments to the Loan Documents deemed reasonably necessary by Lender in order to effectuate the release of such Partial Adjacent Release Parcel and/or to continue to retain all of its rights in the remaining portion of Remaining Adjacent the Release Parcel and/or the Release Remaining Adjacent Parcel, and (B) all documents and information reasonably requested by Lender in order to verify the satisfaction of the foregoing conditions.
Appears in 1 contract
Conditions for Release. Notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, Adjacent in the event that IP Borrower shall desire to sell the IP (in whole but not in part) (an “IP Sale”), to either a bonafide third party purchaser (a “Bonafide IP Purchaser”) or to an Affiliate of Borrower or any other Restricted Party (an “Affiliate IP Purchaser”; and together with a Bonafide IP Purchaser, individually, an “IP Purchaser”), IP Borrower shall have the right, without the prior consent of Lender and without violating the Loan Documents, to (1) sell one or more portions of the Remaining Adjacent Parcel (each, including the entire Remaining Adjacent Parcel, a “Partial Adjacent Parcel”) either to a bonafide third party purchaser (a “Bonafide Adjacent Parcel Purchaser”) or to an Affiliate of Borrower or any other Restricted Party (an “Affiliate Adjacent Parcel Purchaser”; and together with a Bonafide Adjacent Parcel Purchaser, individually, an “Adjacent Parcel Purchaser”), or (2) refinance one or more Partial Adjacent Parcels (each of the foregoing, including a sale or refinancing of the entire Remaining Adjacent Parcel, an “Adjacent Parcel Sale”, it being agreed that, for purposes of this Section 2.5.2, a refinancing of a Partial Adjacent Parcel, including the entire Remaining Adjacent Parcel, shall be treated as an Adjacent Parcel Sale thereof to an Affiliate Adjacent Parcel Purchaser), IP and obtain a release of such Partial Adjacent Parcel the IP from the Liens of the Mortgage and the other Loan Documents encumbering such Partial Adjacent Parcelthe IP, provided that all of the following conditions shall be satisfied with respect to each such Adjacent Parcel IP Sale:
(i) At IP Borrower shall have submitted a Sale Request to Lender at least ten (10) Business Days prior to the anticipated date of such Adjacent Parcel IP Sale, Adjacent Borrower shall have submitted a Sale Request to Lender, specifically identifying and legally describing the Partial Adjacent Parcel that Adjacent Borrower intends to sell, which proposed Partial Adjacent Parcel shall, unless it is the entire Remaining Adjacent Parcel, be reasonably acceptable to Lender taking into account its potential impact on the value of the remaining portions of the Remaining Adjacent Parcel and the Release Parcel, which Sale Request shall include a copy of the contract of sale relating to such Adjacent Parcel IP Sale and an Officer’s Certificate providing a certification that (A) as of the date of such Sale Request, no monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default nor any or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing, (B) the proposed purchaser is a Bonafide Adjacent Parcel IP Purchaser or an Affiliate Adjacent Parcel IP Purchaser, as applicable, and (C) the copy of the contract of sale relating to such Adjacent Parcel IP Sale attached to such certification is true, correct and complete;
(ii) Adjacent IP Borrower shall have delivered to Lender reasonably detailed information regarding the terms of, and the actual and reasonably anticipated costs and expenses associated with, such Adjacent Parcel IP Sale in order to enable Lender to reasonably determine the Adjacent Parcel IP Release Price with respect thereto, all of which shall be certified by Adjacent IP Borrower to Lender as true, complete and correct;
(iii) All accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Reduced Acquisition Loan and/or the Construction Loan and/or the First Mezzanine Loan and/or the Second Mezzanine Loan and/or the Third Mezzanine Loan and any other sum then due hereunder or under any of the other Loan Documents and/or under any of the First Mezzanine Loan Documents and/or under any of the Second Mezzanine Loan Documents and/or under any of the Third Mezzanine Loan Documents, including, without limitation, any applicable Breakage Costs, shall have been paid in full or shall have been arranged to be paid in full contemporaneously with the closing of such Adjacent Parcel IP Sale; provided, however, if such Adjacent Parcel IP Sale closes on a date which is not a Payment Date, Borrowers shall also have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale IP Sale, interest on the Adjacent Parcel IP Release Price to, but not including, the next succeeding ninth (9th) day of a calendar month;
(iv) If the closing of such Adjacent Parcel IP Sale shall occur prior to the Prepayment Fee Release Date, Borrowers shall have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale IP Sale, the Prepayment Fee based on the amount of the applicable Adjacent Parcel IP Release Price;
(v) If the Adjacent Parcel IP Purchaser is a Bonafide Adjacent Parcel IP Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel the IP Sale, to Lender a release price with respect to the sale of such Partial Adjacent Parcel IP equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, such Partial Adjacent Parcel’s the “Bonafide Adjacent Parcel IP Release Price”), which Bonafide Adjacent Parcel IP Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) (1) the gross sales price for such Partial Adjacent Parcelthe IP, less (2) the amount of all reasonable and customary closing costs in connection with such Adjacent Parcel IP Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed eight three percent (83%) of such gross sales price; or
(B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent ParcelIP;
(vi) If the Adjacent Parcel IP Purchaser is an Affiliate Adjacent Parcel IP Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel the IP Sale, to Lender a release price with respect to the sale of such Partial Adjacent Parcel IP equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “Affiliate Adjacent Parcel IP Release Price”; and whichever of the Bonafide Adjacent Parcel IP Release Price or the Affiliate Adjacent Parcel IP Release Price shall be applicable in any instanceapplicable, the “Adjacent Parcel IP Release Price”), which Affiliate Adjacent Parcel IP Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) Eighty-five (1) the gross sales price for the IP, less (2) the amount of all reasonable and customary closing costs in connection with such IP Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed three percent (853%) of the Appraised Value of such Partial Adjacent Parcelgross sales price; or
(B) one hundred twenty-five percent Eighty Million Dollars (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent Parcel$80,000,000.00);
(vii) If the Adjacent Parcel IP Purchaser is an Affiliate Adjacent Parcel IP Purchaser, simultaneously with the closing of such Adjacent Parcel the IP Sale, (A) if such Adjacent Parcel IP Purchaser is a Joint Venture, at Lender’s election, the ownership interest(s) of any Affiliate Joint Venture Counterparty shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have (1) obtained the consent of each Unaffiliated Joint Venture Counterparty to such pledge, and (2) executed and delivered, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to execute and deliver, such documents and instruments, and taken such further actions, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to take any such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge of the ownership interest(s) of any Affiliate Joint Venture Counterparty, or (B) if such Adjacent Parcel IP Purchaser is an Affiliate Adjacent Parcel IP Purchaser of any kind, whether or not a Joint Venture, at Lender’s election, which in the case of an Adjacent Parcel IP Purchaser who is a Joint Venture, would be in lieu of the foregoing clause (A), a security interest in any future sales proceeds from the sale of such Partial Adjacent Parcel the IP shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have executed such documents and instruments, and taken such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge; provided, however, that in the case of either clause (A) or clause (B) above, such pledge (y) shall not prohibit, or require Lender’s consent to, a subsequent sale by the Adjacent Parcel IP Purchaser of such Partial Adjacent Parcelthe IP, but shall only require that the net proceeds of any such subsequent sale which are payable to such Adjacent Parcel the IP Purchaser be delivered to Lender and be used as a prepayment of the Loan pursuant to the same terms and conditions as governed the payment of the Adjacent Parcel IP Release Price that was paid in connection with such Partial Adjacent Parcel (it being understood that any such net proceeds of any such subsequent sale shall be deemed a part of the previously-paid Adjacent Parcel IP Release Price for such Partial Adjacent Parcel for all purposes under this Agreement), and (z) shall terminate upon the earlier of (I) one (1) year from the date of such Partial Adjacent the IP Sale or (II) the repayment in full of the Debt;
(viii) If the Adjacent Parcel Purchaser is a Bonafide Adjacent Parcel Purchaser, if such Bonafide Adjacent Parcel Purchaser finances such Adjacent Parcel Sale, Borrowers shall have caused such Bonafide Adjacent Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Bonafide Adjacent Parcel Purchaser shall have complied with the terms of, a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Article XIII hereof (except only with respect to the particular Adjacent Parcel Sale and not with respect to a total Refinancing Loan);
(ix) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, if such Affiliate Adjacent Parcel Purchaser finances such Adjacent Parcel Sale, Borrowers shall have caused such Affiliate Adjacent Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Affiliate Adjacent Parcel Purchaser shall have complied with the terms of, (A) a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVII attached hereto and made a part hereof, and (B) a right of last look with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVIII attached hereto and made a part hereof;
(x) Borrowers shall have paid all of the actual out-of-pocket reasonable third party legal fees and actual out-of-pocket reasonable third party expenses incurred by Lender in connection with (A) reviewing and processing any Sale Request with respect to an Adjacent Parcel IP Sale, whether or not the Adjacent Parcel IP Sale which is the subject of a Sale Request actually closes, (B) the satisfaction of any of the conditions set forth in this Section 2.5.2(a2.5.3(a), and (C) providing all release documents in connection with any Adjacent Parcel IP Sale as provided in Section 2.5.2(d2.5.3(d) hereof;
(xiix) No monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default nor any or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing at the time of the submission by Adjacent IP Borrower of a Sale Request or at the time of the closing of such Adjacent Parcel an IP Sale;
(xiix) After giving effect to the sale and release of such Partial Adjacent Parcel, the then remaining portions of the Release Parcel and the Remaining Adjacent Parcel will each There shall only be one (A1) comply, in all material respects, with all zoning ordinances, including, without limitation, those related to parking, lot size and density, IP Sale;
(Bxi) constitute The IP Purchaser shall enter into one or more separate tax parcels, and not be subject to any lien for taxes due or not yet due attributable to such Partial Adjacent Parcel, and (C) complyroyalty free license agreements, in all material respectsform and substance reasonably satisfactory to Borrowers and Lender, with all applicable Legal Requirementsapplying the standards of a prudent commercial mortgage loan lender, including, without limitation, those relating pursuant to land use and certificates of occupancy, except which such IP Purchaser shall license to the extent of any legal non-conforming use permitted as of the Closing Date;
(xiii) Adjacent each Borrower shall have certified to Lender that, with respect to the then remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, it continues to have or has obtained through one or more reciprocal easement or other agreements approved by Lender in its reasonable judgment, substantially the same (A) access for all of the Improvements on such remaining portions of each of IP that is reasonably necessary or desirable to operate its Property as then being operated and as then contemplated to be operated in the Release Parcel and future (collectively, the Remaining Adjacent Parcel to parking, vehicular and pedestrian ingress and egress from public roads and common areas“Purchaser Licensed IP”), and (B) utility services in all of the Improvements on such remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, in each instance as exists as of the date immediately preceding such Adjacent Parcel Sale, it being agreed that Lender will subordinate the lien of the Mortgage to any such reciprocal easement agreement or other agreement approved by Lender in its reasonable judgment;
(xiv) Borrowers shall deliver to Lenderapplicable Borrower, at Borrowers’ sole cost and expense, new shall execute and deliver, or updated ALTA/ASCM surveys of the remaining portion of the Remaining Adjacent Parcel and such Partial Adjacent Parcel, which surveys shall substantially conform to Lender’s then-current requirements for surveys cause to be delivered in connection with its loans;
(xv) The Title Company shall issue an endorsement executed and delivered, to and for the Title Insurance Policy regarding the validity benefit of Lender’s lien on the remaining portion of the Remaining Adjacent Parcel after , a security interest agreement covering such Adjacent Parcel Sale and any Purchaser Licensed IP, together with such other endorsements financing statements, documents and/or instruments reasonably requested required by Lender in connection with order to perfect its security interest in the Purchaser Licensed IP and to enable Lender to foreclose on such Adjacent Parcel Sale;
(xvi) If a Securitization has occurred Purchaser Licensed IP upon the occurrence and during the Adjacent Parcel Sale covers less than continuance of an Event of Default, all of the entire Remaining Adjacent Parcel, Borrowers shall have provided foregoing to Lender an opinion letter from counsel be in form and substance reasonably satisfactory to Lender confirming that such Adjacent Parcel Sale shall not constitute a “significant modification” of the Loan within the meaning of Section 1.1001-3 of the regulations of the United States Department of the Treasury or would otherwise violate any of the REMIC Requirements, and Lender shall not otherwise have any reasonable belief (based on an opinion of counsel or a certified public accountant) that such Adjacent Parcel Sale will constitute such a “significant modification” or otherwise violate such REMIC Requirements;
(xvii) Such Adjacent Parcel Sale shall not occur until either (A) Borrowers shall have delivered the Relinquishment Notice, or (B) the Qualification Conditions have not been satisfied on or prior to the Construction Qualification Date;
(xviii) Borrowers shall have paid the Non-Qualified Mandatory Prepayment or shall have delivered a Non-Qualified Prepayment Letter of Credit in lieu thereof, in either instance, on or before the date required under, and otherwise in accordance with the terms of, Section 2.4.2(c) hereofLender; and
(xixxii) Borrowers shall have delivered to Lender (A) any amendments to the Loan Documents deemed reasonably necessary by Lender in order to effectuate the release of such Partial Adjacent Parcel and/or to continue to retain all of its rights in the remaining portion of Remaining Adjacent Parcel and/or the Release ParcelIP, and (B) all documents and information reasonably requested by Lender in order to verify the satisfaction of the foregoing conditions.
Appears in 1 contract
Conditions for Release. Notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, Adjacent in the event that IP Borrower shall desire to sell the IP (in whole but not in part) (an “IP Sale”) to a bonafide third party purchaser (a “IP Purchaser”), IP Borrower shall have the right, without the prior consent of Lender and without violating the Loan Documents, to (1) sell one or more portions of the Remaining Adjacent Parcel (each, including the entire Remaining Adjacent Parcel, a “Partial Adjacent Parcel”) either to a bonafide third party purchaser (a “Bonafide Adjacent Parcel Purchaser”) or to an Affiliate of Borrower or any other Restricted Party (an “Affiliate Adjacent Parcel Purchaser”; and together with a Bonafide Adjacent Parcel Purchaser, individually, an “Adjacent Parcel Purchaser”), or (2) refinance one or more Partial Adjacent Parcels (each of the foregoing, including a sale or refinancing of the entire Remaining Adjacent Parcel, an “Adjacent Parcel Sale”, it being agreed that, for purposes of this Section 2.5.2, a refinancing of a Partial Adjacent Parcel, including the entire Remaining Adjacent Parcel, shall be treated as an Adjacent Parcel Sale thereof to an Affiliate Adjacent Parcel Purchaser), IP and obtain a release of such Partial Adjacent Parcel the IP from the Liens of the Mortgage and the other Loan Documents encumbering such Partial Adjacent Parcelthe IP to an IP Purchaser, provided that all of the following conditions shall be satisfied with respect to each such Adjacent Parcel IP Sale:
(i) At IP Borrower shall have submitted a Sale Request to Lender at least ten (10) Business Days prior to the anticipated date of such Adjacent Parcel IP Sale, Adjacent Borrower shall have submitted a Sale Request to Lender, specifically identifying and legally describing the Partial Adjacent Parcel that Adjacent Borrower intends to sell, which proposed Partial Adjacent Parcel shall, unless it is the entire Remaining Adjacent Parcel, be reasonably acceptable to Lender taking into account its potential impact on the value of the remaining portions of the Remaining Adjacent Parcel and the Release Parcel, which Sale Request shall include a copy of the contract of sale relating to such Adjacent Parcel IP Sale and an Officer’s Certificate providing a certification that (A) as of the date of such Sale Request, no monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default nor any or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing, continuing and (B) the proposed purchaser is a Bonafide Adjacent Parcel Purchaser or an Affiliate Adjacent Parcel Purchaser, as applicable, and (C) the copy of the contract of sale relating to such Adjacent Parcel IP Sale attached to such certification is true, correct and complete;
(ii) Adjacent IP Borrower shall have delivered to Lender reasonably detailed information regarding the terms of, and the actual and reasonably anticipated costs and expenses associated with, such Adjacent Parcel IP Sale in order to enable Lender to reasonably determine the Adjacent Parcel IP Release Price with respect thereto, all of which shall be certified by Adjacent IP Borrower to Lender as true, complete and correct;
(iii) All accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Reduced Acquisition Loan and/or the Construction Loan and/or the First Mezzanine Loan and/or the Second Mezzanine Loan and/or the Third Mezzanine Loan and any other sum then due hereunder or under any of the other Loan Documents and/or under any of the First Mezzanine Loan Documents and/or under any of the Second Mezzanine Loan Documents and/or under any of the Third Mezzanine Loan Documents, including, without limitation, any applicable Breakage Costs, shall have been paid in full or shall have been arranged to be paid in full contemporaneously with the closing of such Adjacent Parcel IP Sale; provided, however, if such Adjacent Parcel IP Sale closes on a date which is not a Payment Date, Borrowers shall also have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale IP Sale, interest on the Adjacent Parcel IP Release Price to, but not including, the next succeeding ninth first (9th1st) day of a calendar month;
(iv) If the closing of such Adjacent Parcel Sale shall occur prior to the Prepayment Fee Release Date, Borrowers shall have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale the Prepayment Fee based on the amount of the applicable Adjacent Parcel Release PriceIntentionally Deleted;
(v) If the Adjacent Parcel Purchaser is a Bonafide Adjacent Parcel Purchaser, in In addition to the amounts set forth in the foregoing clauses clause (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel the IP Sale, to Lender a release price with respect to the sale of such Partial Adjacent Parcel IP equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, such Partial Adjacent Parcel’s the “Bonafide Adjacent Parcel IP Release Price”), which Bonafide Adjacent Parcel IP Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) (1) the gross sales price for such Partial Adjacent Parcelthe IP, less (2) the amount of all reasonable and customary closing costs in connection with such Adjacent Parcel IP Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed eight three percent (83%) of such gross sales price; or
(B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent ParcelIP;
(vi) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale, to Lender a release price with respect to the sale of such Partial Adjacent Parcel equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “Affiliate Adjacent Parcel Release Price”; and whichever of the Bonafide Adjacent Parcel Release Price or the Affiliate Adjacent Parcel Release Price shall be applicable in any instance, the “Adjacent Parcel Release Price”), which Affiliate Adjacent Parcel Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) Eighty-five percent (85%) of the Appraised Value of such Partial Adjacent Parcel; or
(B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent ParcelIntentionally Deleted;
(vii) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, simultaneously with the closing of such Adjacent Parcel Sale, (A) if such Adjacent Parcel Purchaser is a Joint Venture, at Lender’s election, the ownership interest(s) of any Affiliate Joint Venture Counterparty shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have (1) obtained the consent of each Unaffiliated Joint Venture Counterparty to such pledge, and (2) executed and delivered, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to execute and deliver, such documents and instruments, and taken such further actions, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to take any such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge of the ownership interest(s) of any Affiliate Joint Venture Counterparty, or (B) if such Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser of any kind, whether or not a Joint Venture, at Lender’s election, which in the case of an Adjacent Parcel Purchaser who is a Joint Venture, would be in lieu of the foregoing clause (A), a security interest in any future sales proceeds from the sale of such Partial Adjacent Parcel shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have executed such documents and instruments, and taken such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge; provided, however, that in the case of either clause (A) or clause (B) above, such pledge (y) shall not prohibit, or require Lender’s consent to, a subsequent sale by the Adjacent Parcel Purchaser of such Partial Adjacent Parcel, but shall only require that the net proceeds of any such subsequent sale which are payable to such Adjacent Parcel Purchaser be delivered to Lender and be used as a prepayment of the Loan pursuant to the same terms and conditions as governed the payment of the Adjacent Parcel Release Price that was paid in connection with such Partial Adjacent Parcel (it being understood that any such net proceeds of any such subsequent sale shall be deemed a part of the previously-paid Adjacent Parcel Release Price for such Partial Adjacent Parcel for all purposes under this Agreement), and (z) shall terminate upon the earlier of (I) one (1) year from the date of such Partial Adjacent Sale or (II) the repayment in full of the DebtIntentionally Deleted;
(viii) If the Adjacent Parcel Purchaser is a Bonafide Adjacent Parcel Purchaser, if such Bonafide Adjacent Parcel Purchaser finances such Adjacent Parcel Sale, Borrowers shall have caused such Bonafide Adjacent Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Bonafide Adjacent Parcel Purchaser shall have complied with the terms of, a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Article XIII hereof (except only with respect to the particular Adjacent Parcel Sale and not with respect to a total Refinancing Loan);
(ix) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, if such Affiliate Adjacent Parcel Purchaser finances such Adjacent Parcel Sale, Borrowers shall have caused such Affiliate Adjacent Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Affiliate Adjacent Parcel Purchaser shall have complied with the terms of, (A) a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVII attached hereto and made a part hereof, and (B) a right of last look with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVIII attached hereto and made a part hereof;
(x) Borrowers shall have paid all of the actual out-of-pocket reasonable third party legal fees and actual out-of-pocket reasonable third party expenses incurred by Lender in connection with (A) reviewing and processing any Sale Request with respect to an Adjacent Parcel IP Sale, whether or not the Adjacent Parcel IP Sale which is the subject of a Sale Request actually closes, (B) the satisfaction of any of the conditions set forth in this Section 2.5.2(a2.5.3(a), and (C) providing all release documents in connection with any Adjacent Parcel IP Sale as provided in Section 2.5.2(d2.5.3(d) hereof;
(xiix) No monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default nor any or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing at the time of the submission by Adjacent IP Borrower of a Sale Request or at the time of the closing of such Adjacent Parcel an IP Sale;
(xiix) After giving effect to the sale and release of such Partial Adjacent Parcel, the then remaining portions of the Release Parcel and the Remaining Adjacent Parcel will each There shall only be one (A1) comply, in all material respects, with all zoning ordinances, including, without limitation, those related to parking, lot size and density, IP Sale;
(Bxi) constitute The IP Purchaser shall enter into one or more separate tax parcels, and not be subject to any lien for taxes due or not yet due attributable to such Partial Adjacent Parcel, and (C) complyroyalty free license agreements, in all material respectsform and substance reasonably satisfactory to Borrowers and Lender, with all applicable Legal Requirementsapplying the standards of a prudent commercial mortgage loan lender, including, without limitation, those relating pursuant to land use and certificates of occupancy, except which such IP Purchaser shall license to the extent of any legal non-conforming use permitted as of the Closing Date;
(xiii) Adjacent each Borrower shall have certified to Lender that, with respect to the then remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, it continues to have or has obtained through one or more reciprocal easement or other agreements approved by Lender in its reasonable judgment, substantially the same (A) access for all of the Improvements on such remaining portions of each of IP that is reasonably necessary or desirable to operate its Property as then being operated and as then contemplated to be operated in the Release Parcel and future (collectively, the Remaining Adjacent Parcel to parking, vehicular and pedestrian ingress and egress from public roads and common areas“Purchaser Licensed IP”), and (B) utility services in all of the Improvements on such remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, in each instance as exists as of the date immediately preceding such Adjacent Parcel Sale, it being agreed that Lender will subordinate the lien of the Mortgage to any such reciprocal easement agreement or other agreement approved by Lender in its reasonable judgment;
(xiv) Borrowers shall deliver to Lenderapplicable Borrower, at Borrowers’ sole cost and expense, new shall execute and deliver, or updated ALTA/ASCM surveys of the remaining portion of the Remaining Adjacent Parcel and such Partial Adjacent Parcel, which surveys shall substantially conform to Lender’s then-current requirements for surveys cause to be delivered in connection with its loans;
(xv) The Title Company shall issue an endorsement executed and delivered, to and for the Title Insurance Policy regarding the validity benefit of Lender’s lien on the remaining portion of the Remaining Adjacent Parcel after , a security interest agreement covering such Adjacent Parcel Sale and any Purchaser Licensed IP, together with such other endorsements financing statements, documents and/or instruments reasonably requested required by Lender in connection with order to perfect its security interest in the Purchaser Licensed IP and to enable Lender to foreclose on such Adjacent Parcel Sale;
(xvi) If a Securitization has occurred Purchaser Licensed IP upon the occurrence and during the Adjacent Parcel Sale covers less than continuance of an Event of Default, all of the entire Remaining Adjacent Parcel, Borrowers shall have provided foregoing to Lender an opinion letter from counsel be in form and substance reasonably satisfactory to Lender confirming that such Adjacent Parcel Sale shall not constitute a “significant modification” of the Loan within the meaning of Section 1.1001-3 of the regulations of the United States Department of the Treasury or would otherwise violate any of the REMIC Requirements, and Lender shall not otherwise have any reasonable belief (based on an opinion of counsel or a certified public accountant) that such Adjacent Parcel Sale will constitute such a “significant modification” or otherwise violate such REMIC Requirements;
(xvii) Such Adjacent Parcel Sale shall not occur until either (A) Borrowers shall have delivered the Relinquishment Notice, or (B) the Qualification Conditions have not been satisfied on or prior to the Construction Qualification Date;
(xviii) Borrowers shall have paid the Non-Qualified Mandatory Prepayment or shall have delivered a Non-Qualified Prepayment Letter of Credit in lieu thereof, in either instance, on or before the date required under, and otherwise in accordance with the terms of, Section 2.4.2(c) hereofLender; and
(xixxii) Borrowers shall have delivered to Lender (A) any amendments to the Loan Documents deemed reasonably necessary by Lender in order to effectuate the release of such Partial Adjacent Parcel and/or to continue to retain all of its rights in the remaining portion of Remaining Adjacent Parcel and/or the Release ParcelIP, and (B) all documents and information reasonably requested by Lender in order to verify the satisfaction of the foregoing conditions.
Appears in 1 contract
Conditions for Release. Notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, Adjacent Borrower shall have the right, without the prior consent of Lender and without violating the Loan Documents, to (1) sell one or more portions of the Remaining Adjacent Release Parcel (each, including the entire Remaining Adjacent Release Parcel, a “Partial Adjacent Release Parcel”) either to a bonafide third party purchaser (a “Bonafide Adjacent Release Parcel Purchaser”) or to an Affiliate of Borrower or any other Restricted Party (an “Affiliate Adjacent Release Parcel Purchaser”; and together with a Bonafide Adjacent Release Parcel Purchaser, individually, an a “Adjacent Release Parcel Purchaser”), or (2) refinance one or more Partial Adjacent Release Parcels (each of the foregoing, including a sale or refinancing of the entire Remaining Adjacent Release Parcel, an a “Adjacent Release Parcel Sale”, it being agreed that, for purposes of this Section 2.5.22.5.1, a refinancing of a Partial Adjacent Release Parcel, including the entire Remaining Adjacent Release Parcel, shall be treated as an Adjacent a Release Parcel Sale thereof to an Affiliate Adjacent Release Parcel Purchaser), and obtain a release of such Partial Adjacent Release Parcel from the Liens of the Mortgage and the other Loan Documents encumbering such Partial Adjacent Release Parcel, provided that all of the following conditions shall be satisfied with respect to each such Adjacent Release Parcel Sale:
(i) At least ten (10) Business Days prior to the anticipated date of such Adjacent Release Parcel Sale, Adjacent Borrower shall have submitted to Lender a written request for release (a “Sale Request to LenderRequest”), specifically identifying and legally describing the Partial Adjacent Release Parcel that Adjacent Borrower intends to sell, which proposed Partial Adjacent Release Parcel shall, unless it is the entire Remaining Adjacent Release Parcel, be reasonably acceptable to Lender taking into account its potential impact on the value of the remaining portions of the Remaining Adjacent Release Parcel and the Release Remaining Adjacent Parcel, which Sale Request shall include a copy of the contract of sale relating to such Adjacent Release Parcel Sale and an Officer’s Certificate providing a certification that (A) as of the date of such Sale Request, no monetary Default nor any Event of Default shall have occurred and be continuing, (B) the proposed purchaser is a Bonafide Adjacent Release Parcel Purchaser or an Affiliate Adjacent Release Parcel Purchaser, as applicable, and (C) the copy of the contract of sale relating to such Adjacent Release Parcel Sale attached to such certification is true, correct and complete;
(ii) Adjacent Borrower shall have delivered to Lender reasonably detailed information regarding the terms of, and the actual and reasonably anticipated costs and expenses associated with, such Adjacent Release Parcel Sale in order to enable Lender to reasonably determine the Adjacent Release Parcel Release Price with respect thereto, all of which shall be certified by Adjacent Borrower to Lender as true, complete and correct;
(iii) All accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Loan and any other sum then due hereunder or under any of the other Loan Documents, including, without limitation, any applicable Breakage Costs, shall have been paid in full or shall have been arranged to be paid in full contemporaneously with the closing of such Adjacent Release Parcel Sale; provided, however, if such Adjacent Release Parcel Sale closes on a date which is not a Payment Date, Borrowers shall also have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Release Parcel Sale interest on the Adjacent Release Parcel Release Price to, but not including, the next succeeding ninth (9th) day of a calendar month;
(iv) If the closing of such Adjacent Release Parcel Sale shall occur prior to the Prepayment Fee Release Date, Borrowers shall have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Release Parcel Sale the Prepayment Fee based on the amount of the applicable Adjacent Release Parcel Release Price;
(v) If the Adjacent Release Parcel Purchaser is a Bonafide Adjacent Release Parcel Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Release Parcel Sale, to Lender a release price with respect to the sale of such Partial Adjacent Release Parcel equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, such Partial Adjacent Release Parcel’s “Bonafide Adjacent Release Parcel Release Price”), which Bonafide Adjacent Release Parcel Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) (1) the gross sales price for such Partial Adjacent Release Parcel, less (2) the amount of all reasonable and customary closing costs in connection with such Adjacent Release Parcel Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed eight percent (8%) of such gross sales price; or
(B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent Release Parcel;
(vi) If the Adjacent Release Parcel Purchaser is an Affiliate Adjacent Release Parcel Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Release Parcel Sale, to Lender a release price with respect to the sale of such Partial Adjacent Release Parcel equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “Affiliate Adjacent Release Parcel Release Price”; and whichever of the Bonafide Adjacent Release Parcel Release Price or the Affiliate Adjacent Release Parcel Release Price shall be applicable in any instance, the “Adjacent “ Release Parcel Release Price”), which Affiliate Adjacent Release Parcel Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) Eighty-five percent (85%) of the Appraised Value of such Partial Adjacent Release Parcel; or
(B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent Release Parcel;
(vii) If the Adjacent Release Parcel Purchaser is an Affiliate Adjacent Release Parcel Purchaser, simultaneously with the closing of such Adjacent Release Parcel Sale, (A) if such Adjacent Release Parcel Purchaser is a Joint Venture, at Lender’s election, the ownership interest(s) of any Affiliate Joint Venture Counterparty shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have (1) obtained the consent of each Unaffiliated Joint Venture Counterparty to such pledge, and (2) executed and delivered, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to execute and deliver, such documents and instruments, and taken such further actions, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to take any such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge of the ownership interest(s) of any Affiliate Joint Venture Counterparty, or (B) if such Adjacent Release Parcel Purchaser is an Affiliate Adjacent Release Parcel Purchaser of any kind, whether or not a Joint Venture, at Lender’s election, which in the case of an Adjacent a Release Parcel Purchaser who is a Joint Venture, would be in lieu of the foregoing clause (A), a security interest in any future sales proceeds from the sale of such Partial Adjacent Release Parcel shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have executed such documents and instruments, and taken such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge; provided, however, that in the case of either clause (A) or clause (B) above, such pledge (y) shall not prohibit, or require Lender’s consent to, a subsequent sale by the Adjacent Release Parcel Purchaser of such Partial Adjacent Release Parcel, but shall only require that the net proceeds of any such subsequent sale which are payable to such Adjacent Release Parcel Purchaser be delivered to Lender and be used as a prepayment of the Loan pursuant to the same terms and conditions as governed the payment of the Adjacent Release Parcel Release Price that was paid in connection with such Partial Adjacent Release Parcel (it being understood that any such net proceeds of any such subsequent sale shall be deemed a part of the previously-paid Adjacent Release Parcel Release Price for such Partial Adjacent Release Parcel for all purposes under this Agreement), and (z) shall terminate upon the earlier of (I) one (1) year from the date of such Partial Adjacent Release Parcel Sale or (II) the repayment in full of the Debt;
(viii) If the Adjacent Release Parcel Purchaser is a Bonafide Adjacent Release Parcel Purchaser, if such Bonafide Adjacent Release Parcel Purchaser finances such Adjacent Release Parcel Sale, Borrowers shall have caused such Bonafide Adjacent Release Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Bonafide Adjacent Release Parcel Purchaser shall have complied with the terms of, a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Article XIII hereof (except only with respect to the particular Adjacent Release Parcel Sale and not with respect to a total Refinancing Loan);
(ix) If the Adjacent Release Parcel Purchaser is an Affiliate Adjacent Release Parcel Purchaser, if such Affiliate Adjacent Release Parcel Purchaser finances such Adjacent Release Parcel Sale, Borrowers shall have caused such Affiliate Adjacent Release Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Affiliate Adjacent Release Parcel Purchaser shall have complied with the terms of, (A) a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVII attached hereto and made a part hereof, and (B) a right of last look with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVIII attached hereto and made a part hereof;
(x) Borrowers shall have paid all of the actual out-of-pocket reasonable third party legal fees and actual out-of-pocket reasonable third party expenses incurred by Lender in connection with (A) reviewing and processing any Sale Request with respect to an Adjacent a Release Parcel Sale, whether or not the Adjacent Release Parcel Sale which is the subject of a Sale Request actually closes, (B) the satisfaction of any of the conditions set forth in this Section 2.5.2(a2.5.1(a), and (C) providing all release documents in connection with any Adjacent Release Parcel Sale as provided in Section 2.5.2(d2.5.1(d) hereof;
(xi) No monetary Default nor any Event of Default shall have occurred and be continuing at the time of the submission by Adjacent Borrower of a Sale Request or at the time of the closing of such Adjacent Release Parcel Sale;
(xii) After giving effect to the sale and release of such Partial Adjacent Release Parcel, the then remaining portions of the Release Parcel and the Remaining Adjacent Parcel will each (A) comply, in all material respects, with all zoning ordinances, including, without limitation, those related to parking, lot size and density, (B) constitute one or more separate tax parcels, and not be subject to any lien for taxes due or not yet due attributable to such Partial Adjacent Release Parcel, and (C) comply, in all material respects, with all applicable Legal Requirements, including, without limitation, those relating to land use and certificates of occupancy, except to the extent of any legal non-conforming use permitted as of the Closing Date;
(xiii) Adjacent Borrower shall have certified to Lender that, with respect to the then remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, it continues to have or has obtained through one or more reciprocal easement or other agreements approved by Lender in its reasonable judgment, substantially the same (A) access for all of the Improvements on such remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel to parking, vehicular and pedestrian ingress and egress from public roads and common areas, and (B) utility services in all of the Improvements on such remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, in each instance as exists as of the date immediately preceding such Adjacent Release Parcel Sale, it being agreed that Lender will subordinate the lien of the Mortgage to any such reciprocal easement agreement or other agreement approved by Lender in its reasonable judgment;
(xiv) Borrowers shall deliver to Lender, at Borrowers’ sole cost and expense, new or updated ALTA/ASCM surveys of the remaining portion of the Remaining Adjacent Release Parcel and such Partial Adjacent Release Parcel, which surveys shall substantially conform to Lender’s then-current requirements for surveys to be delivered in connection with its loans;
(xv) The Title Company shall issue an endorsement to the Title Insurance Policy regarding the validity of Lender’s lien on the remaining portion of the Remaining Adjacent Release Parcel after such Adjacent Release Parcel Sale and any other endorsements reasonably requested by Lender in connection with such Adjacent Release Parcel Sale;
(xvi) If a Securitization has occurred and the Adjacent Release Parcel Sale covers less than the entire Remaining Adjacent Release Parcel, Borrowers shall have provided to Lender an opinion letter from counsel reasonably satisfactory to Lender confirming that such Adjacent Release Parcel Sale shall not constitute a “significant modification” of the Loan within the meaning of Section 1.1001-3 of the regulations of the United States Department of the Treasury or would otherwise violate any of the provisions of the federal income tax law relating to real estate mortgage investment conduits, which appear at Section 860A through 860G of Subchapter M of Chapter 1 of the Code, as amended, and related provisions and regulations (including any applicable proposed regulations) and rulings promulgated thereunder, as the foregoing may be in effect from time to time (collectively, the “REMIC Requirements”), and Lender shall not otherwise have any reasonable belief (based on an opinion of counsel or a certified public accountant) that such Adjacent Release Parcel Sale will constitute such a “significant modification” or otherwise violate such REMIC Requirements;
(xvii) Such Adjacent Parcel Sale shall not occur until either (A) Borrowers shall have delivered the Relinquishment Notice, or (B) the Qualification Conditions have not been satisfied on or prior to the Construction Qualification Date;
(xviii) Borrowers shall have paid the Non-Qualified Mandatory Prepayment or shall have delivered a Non-Qualified Prepayment Letter of Credit in lieu thereof, in either instance, on or before the date required under, and otherwise in accordance with the terms of, Section 2.4.2(c) hereof; and
(xixxvii) Borrowers shall have delivered to Lender (A) any amendments to the Loan Documents deemed reasonably necessary by Lender in order to effectuate the release of such Partial Adjacent Release Parcel and/or to continue to retain all of its rights in the remaining portion of Remaining Adjacent the Release Parcel and/or the Release Remaining Adjacent Parcel, and (B) all documents and information reasonably requested by Lender in order to verify the satisfaction of the foregoing conditions.
Appears in 1 contract
Conditions for Release. Notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, Adjacent in connection with the Transfer of the Six Acre Parcel and the Assumption in accordance with Section 5.2.11 hereof, if applicable, Borrower shall have the right, without the prior consent of Lender and without violating the Loan Documents, to (1) sell one or more portions of have the Remaining Adjacent Five Acre Parcel (each, including the entire Remaining Adjacent Parcel, a “Partial Adjacent Parcel”) either to a bonafide third party purchaser (a “Bonafide Adjacent Parcel Purchaser”) or to an Affiliate of Borrower or any other Restricted Party (an “Affiliate Adjacent Parcel Purchaser”; and together with a Bonafide Adjacent Parcel Purchaser, individually, an “Adjacent Parcel Purchaser”), or (2) refinance one or more Partial Adjacent Parcels (each of the foregoing, including a sale or refinancing of the entire Remaining Adjacent Parcel, an “Adjacent Parcel Sale”, it being agreed that, for purposes of this Section 2.5.2, a refinancing of a Partial Adjacent Parcel, including the entire Remaining Adjacent Parcel, shall be treated as an Adjacent Parcel Sale thereof to an Affiliate Adjacent Parcel Purchaser), and obtain a release of such Partial Adjacent Parcel released from the Liens lien of the Mortgage and the other Loan Documents encumbering such Partial Adjacent Parcel(the “Five Acre Release”), provided that all of the following conditions shall be satisfied with respect to each such Adjacent Parcel Salethe Five Acre Release:
(i) At least ten (10) Business Days prior to the anticipated date of such Adjacent Parcel SaleFive Acre Release, Adjacent Borrower shall have submitted to Lender a Sale Request to Lender, specifically identifying and legally describing the Partial Adjacent Parcel that Adjacent Borrower intends to sellwritten request for release (a “Release Request”), which proposed Partial Adjacent Parcel shall, unless it is the entire Remaining Adjacent Parcel, be reasonably acceptable to Lender taking into account its potential impact on the value of the remaining portions of the Remaining Adjacent Parcel and the Release Parcel, which Sale Request shall include a copy of the contract of sale relating to such Adjacent Parcel Sale and an Officer’s Certificate providing a certification that (A) as of the date of such Sale Release Request, no monetary Default nor any Event of Default shall have occurred and be continuing, (B) the proposed purchaser is a Bonafide Adjacent Parcel Purchaser or an Affiliate Adjacent Parcel Purchaser, as applicable, and (C) the copy of the contract of sale relating to such Adjacent Parcel Sale attached to such certification is true, correct and complete;
(ii) Adjacent Borrower shall have delivered to Lender reasonably detailed information regarding the terms of, and the actual and reasonably anticipated costs and expenses associated with, such Adjacent Parcel Sale in order to enable Lender to reasonably determine the Adjacent Parcel Release Price with respect thereto, all of which shall be certified by Adjacent Borrower to Lender as true, complete and correct;
(iii) All accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Loan and any other sum then due hereunder or under any of the other Loan Documents, including, without limitation, any applicable Breakage Costs, shall have been paid in full or shall have been arranged to be paid in full contemporaneously with the closing of such Adjacent Parcel SaleFive Acre Release; provided, however, if such Adjacent Parcel Sale Five Acre Release closes on a date which is not a Payment Date, Borrowers Borrower shall also have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale Five Acre Release, interest on the Adjacent Parcel Five Acre Release Price to, but not including, the next succeeding ninth (9th) day of a calendar month;
(iviii) If the closing of such Adjacent Parcel Sale Five Acre Release shall occur prior to the Prepayment Fee Release Initial Maturity Date, Borrowers Borrower shall have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale Five Acre Release the Five Acre Prepayment Fee based on the amount of the applicable Adjacent Parcel Release PricePremium;
(viv) If the Adjacent Parcel Purchaser is a Bonafide Adjacent Parcel Purchaser, in In addition to the amounts set forth in the foregoing clauses (iiiii) and (iviii), Borrowers Borrower shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel SaleFive Acre Release, to Lender a release price with respect to the sale of such Partial Adjacent Parcel equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, such Partial Adjacent Parcel’s “Bonafide Adjacent Parcel Five Acre Release Price”), which Bonafide Adjacent Parcel Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) (1) the gross sales price for such Partial Adjacent Parcel, less (2) the amount of all reasonable and customary closing costs in connection with such Adjacent Parcel Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed eight percent (8%) of such gross sales price; or
(B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent Parcel;
(viv) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale, to Lender a release price with respect to the sale of such Partial Adjacent Parcel equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “Affiliate Adjacent Parcel Release Price”; and whichever of the Bonafide Adjacent Parcel Release Price or the Affiliate Adjacent Parcel Release Price shall be applicable in any instance, the “Adjacent Parcel Release Price”), which Affiliate Adjacent Parcel Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) Eighty-five percent (85%) of the Appraised Value of such Partial Adjacent Parcel; or
(B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent Parcel;
(vii) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, simultaneously with the closing of such Adjacent Parcel Sale, (A) if such Adjacent Parcel Purchaser is a Joint Venture, at Lender’s election, the ownership interest(s) of any Affiliate Joint Venture Counterparty shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have (1) obtained the consent of each Unaffiliated Joint Venture Counterparty to such pledge, and (2) executed and delivered, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to execute and deliver, such documents and instruments, and taken such further actions, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to take any such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge of the ownership interest(s) of any Affiliate Joint Venture Counterparty, or (B) if such Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser of any kind, whether or not a Joint Venture, at Lender’s election, which in the case of an Adjacent Parcel Purchaser who is a Joint Venture, would be in lieu of the foregoing clause (A), a security interest in any future sales proceeds from the sale of such Partial Adjacent Parcel shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have executed such documents and instruments, and taken such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge; provided, however, that in the case of either clause (A) or clause (B) above, such pledge (y) shall not prohibit, or require Lender’s consent to, a subsequent sale by the Adjacent Parcel Purchaser of such Partial Adjacent Parcel, but shall only require that the net proceeds of any such subsequent sale which are payable to such Adjacent Parcel Purchaser be delivered to Lender and be used as a prepayment of the Loan pursuant to the same terms and conditions as governed the payment of the Adjacent Parcel Release Price that was paid in connection with such Partial Adjacent Parcel (it being understood that any such net proceeds of any such subsequent sale shall be deemed a part of the previously-paid Adjacent Parcel Release Price for such Partial Adjacent Parcel for all purposes under this Agreement), and (z) shall terminate upon the earlier of (I) one (1) year from the date of such Partial Adjacent Sale or (II) the repayment in full of the Debt;
(viii) If the Adjacent Parcel Purchaser is a Bonafide Adjacent Parcel Purchaser, if such Bonafide Adjacent Parcel Purchaser finances such Adjacent Parcel Sale, Borrowers shall have caused such Bonafide Adjacent Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Bonafide Adjacent Parcel Purchaser shall have complied with the terms of, a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Article XIII hereof (except only with respect to the particular Adjacent Parcel Sale and not with respect to a total Refinancing Loan);
(ix) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, if such Affiliate Adjacent Parcel Purchaser finances such Adjacent Parcel Sale, Borrowers shall have caused such Affiliate Adjacent Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Affiliate Adjacent Parcel Purchaser shall have complied with the terms of, (A) a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVII attached hereto and made a part hereof, and (B) a right of last look with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVIII attached hereto and made a part hereof;
(x) Borrowers Borrower shall have paid all of the actual out-of-pocket reasonable third party legal fees and actual out-of-pocket reasonable third party expenses incurred by Lender in connection with (A) reviewing and processing any Sale Request with respect to an Adjacent Parcel SaleRelease Request, whether or not the Adjacent Parcel Sale which is the subject of a Sale Request Five Acre Release actually closes, (B) the satisfaction of any of the conditions set forth in this Section 2.5.2(a2.5.1(a), and (C) providing all release documents in connection with any Adjacent Parcel Sale the Five Acre Release as provided in Section 2.5.2(d2.5.1(d) hereof;
(xivi) No monetary Default nor any Event of Default shall have occurred and be continuing at the time of the submission by Adjacent Borrower of a Sale Release Request or at the time of the closing of such Adjacent Parcel SaleFive Acre Release;
(xiivii) After giving effect to the sale and release of such Partial Adjacent the Five Acre Parcel, the then remaining portions of the Release Parcel and the Remaining Adjacent Six Acre Parcel will each (A) comply, in all material respects, with all zoning ordinances, including, without limitation, those related to parking, lot size and density, (B) constitute one or more separate tax parcels, and not be subject to any lien for taxes due or not yet due attributable to such Partial Adjacent the Five Acre Parcel, and (C) comply, in all material respects, with all applicable Legal Requirements, including, without limitation, those relating to subdivision and land use and certificates of occupancyuse, except to the extent of any legal non-conforming use permitted as of the Closing Date;
(xiiiviii) Adjacent Borrower shall have certified to Lender that, with respect to the then remaining portions of each of the Release Parcel and the Remaining Adjacent Six Acre Parcel, it continues to have or has obtained through one or more reciprocal easement or other agreements approved by Lender in its reasonable judgment, substantially the same (A) access for all of the Improvements (including any Permitted Temporary Improvements located on such remaining portions of each of the Release Parcel and Six Acre Parcel, unless no longer required by the Remaining Adjacent Hotel/Casino Property Owner) or for any future Improvements which may be constructed on the Six Acre Parcel to parking, vehicular and pedestrian ingress and egress to and from (1) public roads roads, including, without limitation, Paradise Road and ▇▇▇▇▇▇ Avenue (subject to certain restrictions approved by Lender in its reasonable discretion), (2) common areas, including, without limitation, the pool area at the Hard Rock Hotel and Casino (subject to certain restrictions approved by Lender in its reasonable discretion), and (3) a pedestrian bridge to be constructed on the Property and the Hotel/Casino Property, and the right to connect and attach to such portions of the pedestrian bridge constructed on the Five Acre Parcel and on the Hotel/Casino Property (subject to certain restrictions approved by Lender in its reasonable discretion), (B) utility services in for all of the Improvements or for any future Improvements which may be constructed on such remaining portions of each the Six Acre Parcel, (C) water flow and drainage pipes, detention ponds and other drainage infrastructure for all of the Release Improvements or for any future Improvements which may be constructed on the Six Acre Parcel, and (D) rights for monumentation and directional signage for all of the Improvements or for any future Improvements which may be constructed on the Six Acre Parcel to be generally located at the ▇▇▇▇▇▇ Avenue entrance to the Hotel/Casino Property and the Remaining Adjacent ParcelParadise Road entrance to the Property (subject to certain restrictions approved by Lender in its reasonable discretion), in each instance as exists as of the date immediately preceding such Adjacent Parcel SaleFive Acre Release, it being agreed that Lender will subordinate the lien of the Mortgage to any such reciprocal easement agreement or other agreement approved by Lender in its reasonable judgment;
(xivix) Borrowers Borrower shall deliver to Lender or shall cause Gansevoort Borrower to deliver to Lender, at Borrowers’ Borrower’s (or Gansevoort Borrower’s, as the case may be) sole cost and expense, a new or updated ALTA/ASCM surveys survey of the remaining portion of the Remaining Adjacent Parcel and such Partial Adjacent Six Acre Parcel, which surveys survey shall substantially conform to Lender’s then-current requirements for surveys to be delivered in connection with its loans;
(xvx) The Title Company shall issue an endorsement to the Title Insurance Policy regarding the validity of Lender’s lien on the remaining portion of the Remaining Adjacent Six Acre Parcel after such Adjacent Parcel Sale and any other endorsements reasonably requested by Lender in connection with such Adjacent Parcel Sale;
(xvi) If a Securitization has occurred and the Adjacent Parcel Sale covers less than the entire Remaining Adjacent Parcel, Borrowers shall have provided to Lender an opinion letter from counsel reasonably satisfactory to Lender confirming that such Adjacent Parcel Sale shall not constitute a “significant modification” of the Loan within the meaning of Section 1.1001-3 of the regulations of the United States Department of the Treasury or would otherwise violate any of the REMIC Requirements, and Lender shall not otherwise have any reasonable belief (based on an opinion of counsel or a certified public accountant) that such Adjacent Parcel Sale will constitute such a “significant modification” or otherwise violate such REMIC Requirements;
(xvii) Such Adjacent Parcel Sale shall not occur until either (A) Borrowers shall have delivered the Relinquishment Notice, or (B) the Qualification Conditions have not been satisfied on or prior to the Construction Qualification Date;
(xviii) Borrowers shall have paid the Non-Qualified Mandatory Prepayment or shall have delivered a Non-Qualified Prepayment Letter of Credit in lieu thereof, in either instance, on or before the date required under, and otherwise in accordance with the terms of, Section 2.4.2(c) hereofFive Acre Release; and
(xixxi) Borrowers Borrower shall have delivered to Lender (A) any amendments to the Loan Documents deemed reasonably necessary by Lender in order to effectuate the release of such Partial Adjacent the Five Acre Parcel and/or to continue to retain all of its rights in the remaining portion of Remaining Adjacent Parcel and/or the Release Six Acre Parcel, and (B) all documents and information reasonably requested by Lender in order to verify the satisfaction of the foregoing conditions.
Appears in 1 contract
Conditions for Release. Notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, Adjacent Borrower shall have the right, without the prior consent of Lender and without violating the Loan Documents, to (1) sell one or more portions of the Remaining Adjacent Parcel (each, including the entire Remaining Adjacent Parcel, a “Partial Adjacent Parcel”) either to a bonafide third party purchaser (a “Bonafide Adjacent Parcel Purchaser”) or to an Affiliate of Borrower or any other Restricted Party (an “Affiliate Adjacent Parcel Purchaser”; and together with a Bonafide Adjacent Parcel Purchaser, individually, an “Adjacent Parcel Purchaser”), or (2) refinance one or more Partial Adjacent Parcels (each of the foregoing, including a sale or refinancing of the entire Remaining Adjacent Parcel, an “Adjacent Parcel Sale”, it being agreed that, for purposes of this Section 2.5.2, a refinancing of a Partial Adjacent Parcel, including the entire Remaining Adjacent Parcel, shall be treated as an Adjacent Parcel Sale thereof to an Affiliate Adjacent Parcel Purchaser), and obtain a release of such Partial Adjacent Parcel from the Liens of the Mortgage and the other Loan Documents encumbering such Partial Adjacent Parcel, provided that all of the following conditions shall be satisfied with respect to each such Adjacent Parcel Sale:
(i) At least ten (10) Business Days prior to the anticipated date of such Adjacent Parcel Sale, Adjacent Borrower shall have submitted a Sale Request to Lender, specifically identifying and legally describing the Partial Adjacent Parcel that Adjacent Borrower intends to sell, which proposed Partial Adjacent Parcel shall, unless it is the entire Remaining Adjacent Parcel, be reasonably acceptable to Lender taking into account its potential impact on the value of the remaining portions of the Remaining Adjacent Parcel and the Release Parcel, which Sale Request shall include a copy of the contract of sale relating to such Adjacent Parcel Sale and an Officer’s Certificate providing a certification that (A) as of the date of such Sale Request, no monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default nor any or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing, (B) the proposed purchaser is a Bonafide Adjacent Parcel Purchaser or an Affiliate Adjacent Parcel Purchaser, as applicable, and (C) the copy of the contract of sale relating to such Adjacent Parcel Sale attached to such certification is true, correct and complete;
(ii) Adjacent Borrower shall have delivered to Lender reasonably detailed information regarding the terms of, and the actual and reasonably anticipated costs and expenses associated with, such Adjacent Parcel Sale in order to enable Lender to reasonably determine the Adjacent Parcel Release Price with respect thereto, all of which shall be certified by Adjacent Borrower to Lender as true, complete and correct;
(iii) All accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Reduced Acquisition Loan and/or the Construction Loan and/or the First Mezzanine Loan and/or the Second Mezzanine Loan and/or the Third Mezzanine Loan and any other sum then due hereunder or under any of the other Loan Documents and/or under any of the First Mezzanine Loan Documents and/or under any of the Second Mezzanine Loan Documents and/or under any of the Third Mezzanine Loan Documents, including, without limitation, any applicable Breakage Costs, shall have been paid in full or shall have been arranged to be paid in full contemporaneously with the closing of such Adjacent Parcel Sale; provided, however, if such Adjacent Parcel Sale closes on a date which is not a Payment Date, Borrowers shall also have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale interest on the Adjacent Parcel Release Price to, but not including, the next succeeding ninth (9th) day of a calendar month;
(iv) If the closing of such Adjacent Parcel Sale shall occur prior to the Prepayment Fee Release Date, Borrowers shall have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale the Prepayment Fee based on the amount of the applicable Adjacent Parcel Release Price;
(v) If the Adjacent Parcel Purchaser is a Bonafide Adjacent Parcel Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale, to Lender a release price with respect to the sale of such Partial Adjacent Parcel equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, such Partial Adjacent Parcel’s “Bonafide Adjacent Parcel Release Price”), which Bonafide Adjacent Parcel Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) (1) the gross sales price for such Partial Adjacent Parcel, less (2) the amount of all reasonable and customary closing costs in connection with such Adjacent Parcel Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed eight percent (8%) of such gross sales price; or
(B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent Parcel;
(vi) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale, to Lender a release price with respect to the sale of such Partial Adjacent Parcel equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “Affiliate Adjacent Parcel Release Price”; and whichever of the Bonafide Adjacent Parcel Release Price or the Affiliate Adjacent Parcel Release Price shall be applicable in any instance, the “Adjacent Parcel Release Price”), which Affiliate Adjacent Parcel Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) Eighty-five percent (85%) of the Appraised Value of such Partial Adjacent Parcel; or
(B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent Parcel;
(vii) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, simultaneously with the closing of such Adjacent Parcel Sale, (A) if such Adjacent Parcel Purchaser is a Joint Venture, at Lender’s election, the ownership interest(s) of any Affiliate Joint Venture Counterparty shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have (1) obtained the consent of each Unaffiliated Joint Venture Counterparty to such pledge, and (2) executed and delivered, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to execute and deliver, such documents and instruments, and taken such further actions, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to take any such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge of the ownership interest(s) of any Affiliate Joint Venture Counterparty, or (B) if such Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser of any kind, whether or not a Joint Venture, at Lender’s election, which in the case of an Adjacent Parcel Purchaser who is a Joint Venture, would be in lieu of the foregoing clause (A), a security interest in any future sales proceeds from the sale of such Partial Adjacent Parcel shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have executed such documents and instruments, and taken such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge; provided, however, that in the case of either clause (A) or clause (B) above, such pledge (y) shall not prohibit, or require Lender’s consent to, a subsequent sale by the Adjacent Parcel Purchaser of such Partial Adjacent Parcel, but shall only require that the net proceeds of any such subsequent sale which are payable to such Adjacent Parcel Purchaser be delivered to Lender and be used as a prepayment of the Loan pursuant to the same terms and conditions as governed the payment of the Adjacent Parcel Release Price that was paid in connection with such Partial Adjacent Parcel (it being understood that any such net proceeds of any such subsequent sale shall be deemed a part of the previously-paid Adjacent Parcel Release Price for such Partial Adjacent Parcel for all purposes under this Agreement), and (z) shall terminate upon the earlier of (I) one (1) year from the date of such Partial Adjacent Sale or (II) the repayment in full of the Debt;
(viii) If the Adjacent Parcel Purchaser is a Bonafide Adjacent Parcel Purchaser, if such Bonafide Adjacent Parcel Purchaser finances such Adjacent Parcel Sale, Borrowers shall have caused such Bonafide Adjacent Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Bonafide Adjacent Parcel Purchaser shall have complied with the terms of, a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Article XIII hereof (except only with respect to the particular Adjacent Parcel Sale and not with respect to a total Refinancing Loan);
(ix) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, if such Affiliate Adjacent Parcel Purchaser finances such Adjacent Parcel Sale, Borrowers shall have caused such Affiliate Adjacent Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Affiliate Adjacent Parcel Purchaser shall have complied with the terms of, (A) a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVII attached hereto and made a part hereof, and (B) a right of last look with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVIII attached hereto and made a part hereof;
(x) Borrowers shall have paid all of the actual out-of-pocket reasonable third party legal fees and actual out-of-pocket reasonable third party expenses incurred by Lender in connection with (A) reviewing and processing any Sale Request with respect to an Adjacent Parcel Sale, whether or not the Adjacent Parcel Sale which is the subject of a Sale Request actually closes, (B) the satisfaction of any of the conditions set forth in this Section 2.5.2(a), and (C) providing all release documents in connection with any Adjacent Parcel Sale as provided in Section 2.5.2(d) hereof;
(xi) No monetary Default, monetary First Mezzanine Default, monetary Second Mezzanine Default nor any or monetary Third Mezzanine Default, and no Event of Default, First Mezzanine Event of Default, Second Mezzanine Event of Default or Third Mezzanine Event of Default, shall have occurred and be continuing at the time of the submission by Adjacent Borrower of a Sale Request or at the time of the closing of such Adjacent Parcel Sale;
(xii) After giving effect to the sale and release of such Partial Adjacent Parcel, the then remaining portions of the Release Parcel and the Remaining Adjacent Parcel will each (A) comply, in all material respects, with all zoning ordinances, including, without limitation, those related to parking, lot size and density, (B) constitute one or more separate tax parcels, and not be subject to any lien for taxes due or not yet due attributable to such Partial Adjacent Parcel, and (C) comply, in all material respects, with all applicable Legal Requirements, including, without limitation, those relating to land use and certificates of occupancy, except to the extent of any legal non-conforming use permitted as of the Closing Date;
(xiii) Adjacent Borrower shall have certified to Lender that, with respect to the then remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, it continues to have or has obtained through one or more reciprocal easement or other agreements approved by Lender in its reasonable judgment, substantially the same (A) access for all of the Improvements on such remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel to parking, vehicular and pedestrian ingress and egress from public roads and common areas, and (B) utility services in all of the Improvements on such remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, in each instance as exists as of the date immediately preceding such Adjacent Parcel Sale, it being agreed that Lender will subordinate the lien of the Mortgage to any such reciprocal easement agreement or other agreement approved by Lender in its reasonable judgment;
(xiv) Borrowers shall deliver to Lender, at Borrowers’ sole cost and expense, new or updated ALTA/ASCM surveys of the remaining portion of the Remaining Adjacent Parcel and such Partial Adjacent Parcel, which surveys shall substantially conform to Lender’s then-current requirements for surveys to be delivered in connection with its loans;
(xv) The Title Company shall issue an endorsement to the Title Insurance Policy regarding the validity of Lender’s lien on the remaining portion of the Remaining Adjacent Parcel after such Adjacent Parcel Sale and any other endorsements reasonably requested by Lender in connection with such Adjacent Parcel Sale;
(xvi) If a Securitization has occurred and the Adjacent Parcel Sale covers less than the entire Remaining Adjacent Parcel, Borrowers shall have provided to Lender an opinion letter from counsel reasonably satisfactory to Lender confirming that such Adjacent Parcel Sale shall not constitute a “significant modification” of the Loan within the meaning of Section 1.1001-3 of the regulations of the United States Department of the Treasury or would otherwise violate any of the REMIC Requirements, and Lender shall not otherwise have any reasonable belief (based on an opinion of counsel or a certified public accountant) that such Adjacent Parcel Sale will constitute such a “significant modification” or otherwise violate such REMIC Requirements;
(xvii) Such Adjacent Parcel Sale shall not occur until either (A) Borrowers shall have delivered the Relinquishment Notice, or (B) the Qualification Conditions have not been satisfied on or prior to the Construction Qualification Date;
(xviii) Borrowers shall have paid the Non-Qualified Mandatory Prepayment or shall have delivered a Non-Qualified Prepayment Letter of Credit in lieu thereof, in either instance, on or before the date required under, and otherwise in accordance with the terms of, Section 2.4.2(c) hereof; and
(xix) Borrowers shall have delivered to Lender (A) any amendments to the Loan Documents deemed reasonably necessary by Lender in order to effectuate the release of such Partial Adjacent Parcel and/or to continue to retain all of its rights in the remaining portion of Remaining Adjacent Parcel and/or the Release Parcel, and (B) all documents and information reasonably requested by Lender in order to verify the satisfaction of the foregoing conditions.
Appears in 1 contract
Conditions for Release. Notwithstanding anything to the contrary set forth in this Agreement or the other Loan Documents, Adjacent in the event that IP Borrower shall desire to sell the IP (in whole but not in part) (an “IP Sale”), to either a bonafide third party purchaser (a “Bonafide IP Purchaser”) or to an Affiliate of Borrower or any other Restricted Party (an “Affiliate IP Purchaser”; and together with a Bonafide IP Purchaser, individually, an “IP Purchaser”), IP Borrower shall have the right, without the prior consent of Lender and without violating the Loan Documents, to (1) sell one or more portions of the Remaining Adjacent Parcel (each, including the entire Remaining Adjacent Parcel, a “Partial Adjacent Parcel”) either to a bonafide third party purchaser (a “Bonafide Adjacent Parcel Purchaser”) or to an Affiliate of Borrower or any other Restricted Party (an “Affiliate Adjacent Parcel Purchaser”; and together with a Bonafide Adjacent Parcel Purchaser, individually, an “Adjacent Parcel Purchaser”), or (2) refinance one or more Partial Adjacent Parcels (each of the foregoing, including a sale or refinancing of the entire Remaining Adjacent Parcel, an “Adjacent Parcel Sale”, it being agreed that, for purposes of this Section 2.5.2, a refinancing of a Partial Adjacent Parcel, including the entire Remaining Adjacent Parcel, shall be treated as an Adjacent Parcel Sale thereof to an Affiliate Adjacent Parcel Purchaser), IP and obtain a release of such Partial Adjacent Parcel the IP from the Liens of the Mortgage and the other Loan Documents encumbering such Partial Adjacent Parcelthe IP, provided that all of the following conditions shall be satisfied with respect to each such Adjacent Parcel IP Sale:
(i) At IP Borrower shall have submitted a Sale Request to Lender at least ten (10) Business Days prior to the anticipated date of such Adjacent Parcel IP Sale, Adjacent Borrower shall have submitted a Sale Request to Lender, specifically identifying and legally describing the Partial Adjacent Parcel that Adjacent Borrower intends to sell, which proposed Partial Adjacent Parcel shall, unless it is the entire Remaining Adjacent Parcel, be reasonably acceptable to Lender taking into account its potential impact on the value of the remaining portions of the Remaining Adjacent Parcel and the Release Parcel, which Sale Request shall include a copy of the contract of sale relating to such Adjacent Parcel IP Sale and an Officer’s Certificate providing a certification that (A) as of the date of such Sale Request, no monetary Default nor any Event of Default shall have occurred and be continuing, (B) the proposed purchaser is a Bonafide Adjacent Parcel IP Purchaser or an Affiliate Adjacent Parcel IP Purchaser, as applicable, and (C) the copy of the contract of sale relating to such Adjacent Parcel IP Sale attached to such certification is true, correct and complete;
(ii) Adjacent IP Borrower shall have delivered to Lender reasonably detailed information regarding the terms of, and the actual and reasonably anticipated costs and expenses associated with, such Adjacent Parcel IP Sale in order to enable Lender to reasonably determine the Adjacent Parcel IP Release Price with respect thereto, all of which shall be certified by Adjacent IP Borrower to Lender as true, complete and correct;
(iii) All accrued and unpaid interest and any unpaid or unreimbursed amounts in respect of the Loan and any other sum then due hereunder or under any of the other Loan Documents, including, without limitation, any applicable Breakage Costs, shall have been paid in full or shall have been arranged to be paid in full contemporaneously with the closing of such Adjacent Parcel IP Sale; provided, however, if such Adjacent Parcel IP Sale closes on a date which is not a Payment Date, Borrowers shall also have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale IP Sale, interest on the Adjacent Parcel IP Release Price to, but not including, the next succeeding ninth (9th) day of a calendar month;
(iv) If the closing of such Adjacent Parcel IP Sale shall occur prior to the Prepayment Fee Release Date, Borrowers shall have paid or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel Sale IP Sale, the Prepayment Fee based on the amount of the applicable Adjacent Parcel IP Release Price;
(v) If the Adjacent Parcel IP Purchaser is a Bonafide Adjacent Parcel IP Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel the IP Sale, to Lender a release price with respect to the sale of such Partial Adjacent Parcel IP equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, such Partial Adjacent Parcel’s the “Bonafide Adjacent Parcel IP Release Price”), which Bonafide Adjacent Parcel IP Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) (1) the gross sales price for such Partial Adjacent Parcelthe IP, less (2) the amount of all reasonable and customary closing costs in connection with such Adjacent Parcel IP Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed eight three percent (83%) of such gross sales price; or
(B) one hundred twenty-five percent (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent ParcelIP;
(vi) If the Adjacent Parcel IP Purchaser is an Affiliate Adjacent Parcel IP Purchaser, in addition to the amounts set forth in the foregoing clauses (iii) and (iv), Borrowers shall have paid, or shall have arranged to be paid contemporaneously with the closing of such Adjacent Parcel the IP Sale, to Lender a release price with respect to the sale of such Partial Adjacent Parcel IP equal to the greater of the following (whichever of the following subclause (A) or (B) is greater, the “Affiliate Adjacent Parcel IP Release Price”; and whichever of the Bonafide Adjacent Parcel IP Release Price or the Affiliate Adjacent Parcel IP Release Price shall be applicable in any instanceapplicable, the “Adjacent Parcel IP Release Price”), which Affiliate Adjacent Parcel IP Release Price shall be applied as contemplated by Section 2.4.3 hereof:
(A) Eighty-five (1) the gross sales price for the IP, less (2) the amount of all reasonable and customary closing costs in connection with such IP Sale actually paid by any Borrower to any Person who is not a Restricted Party or any Affiliate thereof; provided, however, that in no event shall such closing costs exceed three percent (853%) of the Appraised Value of such Partial Adjacent Parcelgross sales price; or
(B) one hundred twenty-five percent Eighty Million Dollars (125%) of the per acre Allocated Loan Amount for such portion of the Remaining Adjacent Parcel$80,000,000.00);
(vii) If the Adjacent Parcel IP Purchaser is an Affiliate Adjacent Parcel IP Purchaser, simultaneously with the closing of such Adjacent Parcel the IP Sale, (A) if such Adjacent Parcel IP Purchaser is a Joint Venture, at Lender’s election, the ownership interest(s) of any Affiliate Joint Venture Counterparty shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have (1) obtained the consent of each Unaffiliated Joint Venture Counterparty to such pledge, and (2) executed and delivered, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to execute and deliver, such documents and instruments, and taken such further actions, and caused any such Affiliate Joint Venture Counterparty and Unaffiliated Joint Venture Counterparty to take any such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge of the ownership interest(s) of any Affiliate Joint Venture Counterparty, or (B) if such Adjacent Parcel IP Purchaser is an Affiliate Adjacent Parcel IP Purchaser of any kind, whether or not a Joint Venture, at Lender’s election, which in the case of an Adjacent Parcel IP Purchaser who is a Joint Venture, would be in lieu of the foregoing clause (A), a security interest in any future sales proceeds from the sale of such Partial Adjacent Parcel the IP shall be pledged to Lender as additional collateral for the Obligations, which pledge shall constitute a first priority Lien thereon, and Borrowers shall have executed such documents and instruments, and taken such further actions, as reasonably requested by Lender to evidence, secure and perfect such pledge; provided, however, that in the case of either clause (A) or clause (B) above, such pledge (y) shall not prohibit, or require Lender’s consent to, a subsequent sale by the Adjacent Parcel IP Purchaser of such Partial Adjacent Parcelthe IP, but shall only require that the net proceeds of any such subsequent sale which are payable to such Adjacent Parcel the IP Purchaser be delivered to Lender and be used as a prepayment of the Loan pursuant to the same terms and conditions as governed the payment of the Adjacent Parcel IP Release Price that was paid in connection with such Partial Adjacent Parcel (it being understood that any such net proceeds of any such subsequent sale shall be deemed a part of the previously-paid Adjacent Parcel IP Release Price for such Partial Adjacent Parcel for all purposes under this Agreement), and (z) shall terminate upon the earlier of (I) one (1) year from the date of such Partial Adjacent the IP Sale or (II) the repayment in full of the Debt;
(viii) If the Adjacent Parcel Purchaser is a Bonafide Adjacent Parcel Purchaser, if such Bonafide Adjacent Parcel Purchaser finances such Adjacent Parcel Sale, Borrowers shall have caused such Bonafide Adjacent Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Bonafide Adjacent Parcel Purchaser shall have complied with the terms of, a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Article XIII hereof (except only with respect to the particular Adjacent Parcel Sale and not with respect to a total Refinancing Loan);
(ix) If the Adjacent Parcel Purchaser is an Affiliate Adjacent Parcel Purchaser, if such Affiliate Adjacent Parcel Purchaser finances such Adjacent Parcel Sale, Borrowers shall have caused such Affiliate Adjacent Parcel Purchaser to provide to Credit Suisse (whether or not Credit Suisse or any Affiliate thereof is then “Lender” under this Agreement and the other Loan Documents), and such Affiliate Adjacent Parcel Purchaser shall have complied with the terms of, (A) a right of first offer with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVII attached hereto and made a part hereof, and (B) a right of last look with respect to such financing, such right to be on the same terms and conditions as are set forth in Schedule XVIII attached hereto and made a part hereof;
(x) Borrowers shall have paid all of the actual out-of-pocket reasonable third party legal fees and actual out-of-pocket reasonable third party expenses incurred by Lender in connection with (A) reviewing and processing any Sale Request with respect to an Adjacent Parcel IP Sale, whether or not the Adjacent Parcel IP Sale which is the subject of a Sale Request actually closes, (B) the satisfaction of any of the conditions set forth in this Section 2.5.2(a2.5.3(a), and (C) providing all release documents in connection with any Adjacent Parcel IP Sale as provided in Section 2.5.2(d2.5.3(d) hereof;
(xiix) No monetary Default nor any Event of Default shall have occurred and be continuing at the time of the submission by Adjacent IP Borrower of a Sale Request or at the time of the closing of such Adjacent Parcel an IP Sale;
(xiix) After giving effect to the sale and release of such Partial Adjacent Parcel, the then remaining portions of the Release Parcel and the Remaining Adjacent Parcel will each There shall only be one (A1) comply, in all material respects, with all zoning ordinances, including, without limitation, those related to parking, lot size and density, IP Sale;
(Bxi) constitute The IP Purchaser shall enter into one or more separate tax parcels, and not be subject to any lien for taxes due or not yet due attributable to such Partial Adjacent Parcel, and (C) complyroyalty free license agreements, in all material respectsform and substance reasonably satisfactory to Borrowers and Lender, with all applicable Legal Requirementsapplying the standards of a prudent commercial mortgage loan lender, including, without limitation, those relating pursuant to land use and certificates of occupancy, except which such IP Purchaser shall license to the extent of any legal non-conforming use permitted as of the Closing Date;
(xiii) Adjacent each Borrower shall have certified to Lender that, with respect to the then remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, it continues to have or has obtained through one or more reciprocal easement or other agreements approved by Lender in its reasonable judgment, substantially the same (A) access for all of the Improvements on such remaining portions of each of IP that is reasonably necessary or desirable to operate its Property as then being operated and as then contemplated to be operated in the Release Parcel and future (collectively, the Remaining Adjacent Parcel to parking, vehicular and pedestrian ingress and egress from public roads and common areas“Purchaser Licensed IP”), and (B) utility services in all of the Improvements on such remaining portions of each of the Release Parcel and the Remaining Adjacent Parcel, in each instance as exists as of the date immediately preceding such Adjacent Parcel Sale, it being agreed that Lender will subordinate the lien of the Mortgage to any such reciprocal easement agreement or other agreement approved by Lender in its reasonable judgment;
(xiv) Borrowers shall deliver to Lenderapplicable Borrower, at Borrowers’ sole cost and expense, new shall execute and deliver, or updated ALTA/ASCM surveys of the remaining portion of the Remaining Adjacent Parcel and such Partial Adjacent Parcel, which surveys shall substantially conform to Lender’s then-current requirements for surveys cause to be delivered in connection with its loans;
(xv) The Title Company shall issue an endorsement executed and delivered, to and for the Title Insurance Policy regarding the validity benefit of Lender’s lien on the remaining portion of the Remaining Adjacent Parcel after , a security interest agreement covering such Adjacent Parcel Sale and any Purchaser Licensed IP, together with such other endorsements financing statements, documents and/or instruments reasonably requested required by Lender in connection with order to perfect its security interest in the Purchaser Licensed IP and to enable Lender to foreclose on such Adjacent Parcel Sale;
(xvi) If a Securitization has occurred Purchaser Licensed IP upon the occurrence and during the Adjacent Parcel Sale covers less than continuance of an Event of Default, all of the entire Remaining Adjacent Parcel, Borrowers shall have provided foregoing to Lender an opinion letter from counsel be in form and substance reasonably satisfactory to Lender confirming that such Adjacent Parcel Sale shall not constitute a “significant modification” of the Loan within the meaning of Section 1.1001-3 of the regulations of the United States Department of the Treasury or would otherwise violate any of the REMIC Requirements, and Lender shall not otherwise have any reasonable belief (based on an opinion of counsel or a certified public accountant) that such Adjacent Parcel Sale will constitute such a “significant modification” or otherwise violate such REMIC Requirements;
(xvii) Such Adjacent Parcel Sale shall not occur until either (A) Borrowers shall have delivered the Relinquishment Notice, or (B) the Qualification Conditions have not been satisfied on or prior to the Construction Qualification Date;
(xviii) Borrowers shall have paid the Non-Qualified Mandatory Prepayment or shall have delivered a Non-Qualified Prepayment Letter of Credit in lieu thereof, in either instance, on or before the date required under, and otherwise in accordance with the terms of, Section 2.4.2(c) hereofLender; and
(xixxii) Borrowers shall have delivered to Lender (A) any amendments to the Loan Documents deemed reasonably necessary by Lender in order to effectuate the release of such Partial Adjacent Parcel and/or to continue to retain all of its rights in the remaining portion of Remaining Adjacent Parcel and/or the Release ParcelIP, and (B) all documents and information reasonably requested by Lender in order to verify the satisfaction of the foregoing conditions.
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