Individual Properties. In the event Mortgage Borrower requests the release of any Individual Property from the Lien of the applicable Security Instrument and related Mortgage Loan Documents (or to the extent so requested by Mortgage Borrower, the assignment of the Lien of the applicable Security Instrument to a new lender without representation, warranty or recourse) (each release under this Section 2.3.6, a “Property Release”), subject to satisfaction of each of the conditions set forth below with respect to such Individual Property, Lender shall consent to such Property Release and the other actions to be taken by Mortgage Lender in accordance with Section 2.3.6 of the Mortgage Loan Agreement with respect to such Individual Property (each a “Release Property”): (i) Borrower shall deliver a written notice (a “Property Release Notice”) to Lender of its desire to cause First Mezzanine Borrower to cause Mortgage Borrower to effect such Property Release no later than thirty (30) days prior to the date of such desired Property Release, and setting forth the Business Day (the “Release Date”) on which Borrower desires that Mortgage Lender release its interest in such Release Property (provided such Property Release Notice shall be revocable at any time and for any reason by Borrower and may be adjourned on a day-to-day basis on reasonable notice to Lender, but Borrower shall pay any actual reasonable out-of-pocket expenses incurred by Lender in connection with such revocation and/or adjournment); (ii) Borrower shall cause First Mezzanine Borrower to cause Mortgage Borrower to either: (A) if the outstanding principal balance of the Floating Rate Component (Mortgage) is greater than or equal to the Combined Release Price for the Release Property, pay to Mortgage Lender (x) the Combined Release Price for the Release Property, to be applied in reduction of the Floating Rate Component (Mortgage), (y) all Applicable Interest (Mortgage) on the portion of the Floating Rate Component (Mortgage) being repaid, and (z) all other sums due and payable under the Mortgage Loan Agreement, the Mortgage Note, the Security Instrument and the other Mortgage Loan Documents through and including the Release Date; or (B) if the outstanding principal balance of the Floating Rate Component (Mortgage) has previously been reduced to zero, partially defease the Fixed Rate Components (Mortgage) in an aggregate amount equal to the Release Price (Mortgage) for the Release Property, in accordance with Section 2.4.2 of the Mortgage Loan Agreement; or (C) if the outstanding principal balance of the Floating Rate Component (Mortgage) is greater than zero but less than the Combined Release Price for the Release Property, then (x) pay to Mortgage Lender the outstanding principal balance of the Floating Rate Component (Mortgage), to be applied in reduction of the Floating Rate Component (Mortgage), (y) pay to Mortgage Lender the amounts specified in clauses (y) and (z) of subparagraph (ii)(A) above, and (z) if and only if the outstanding principal balance of the Floating Rate Component (Mortgage) being repaid pursuant to clause (x) of this subparagraph (C) is less than the Release Price (Mortgage) for the Release Property, partially defease the Fixed Rate Components (Mortgage) in an amount equal to the positive difference between the Release Price (Mortgage) for the Release Property and the outstanding principal balance of the Floating Rate Component (Mortgage) being repaid, in accordance with Section 2.4.2 of the Mortgage Loan Agreement; (iii) as a condition precedent to a Property Release when the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Combined Release Price for the Release Property, on the Release Date, Borrower shall cause First Mezzanine Lender to partially defease the First Mezzanine Loan in accordance with the provisions of the First Mezzanine Loan Agreement, in an amount equal to either: (A) if the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Release Price (Mortgage) or has previously been reduced to zero, then the Release Price (First Mezzanine) for the Release Property; otherwise (B) the amount by which the Combined Release Price for the Release Property exceeds the outstanding principal balance of the Floating Rate Component (Mortgage), multiplied by a fraction, the numerator of which is the principal balance of the First Mezzanine Loan immediately prior to the Property Release, and the denominator of which is the aggregate principal balance of all Mezzanine Loans immediately prior to the Property Release. (iv) as a condition precedent to a Property Release when the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Combined Release Price for the Release Property, on the Release Date, Borrower shall partially defease the Loan in accordance with the provisions of this Agreement, in an amount equal to either: (A) if the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Release Price (Mortgage) or has previously been reduced to zero, then the applicable Release Price for the Release Property; otherwise (B) the amount by which the Combined Release Price for the Release Property exceeds the outstanding principal balance of the Floating Rate Component (Mortgage), multiplied by a fraction, the numerator of which is the principal balance of the Loan immediately prior to the Property Release, and the denominator of which is the aggregate principal balance of all Mezzanine Loans immediately prior to the Property Release. (v) Borrower shall deliver to Lender not less than ten (10) Business Days prior to the Release Date (which must be on a Business Day) all documentation that may be reasonably required by Lender to be delivered by Borrower in connection with such Property Release (collectively, “Release Instruments”), together with an Officer’s Certificate certifying that (A) any and all Release Instruments, if applicable, are in compliance with all Legal Requirements, (B) the release to be effected will not violate the terms of this Agreement, (C) the release to be effected will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released and (D) the requirement described in paragraph (vi) below is satisfied in connection with such Property Release (together with calculations and supporting documentation demonstrating the same in reasonable detail); (vi) with respect to any Property Release (other than an Excluded Release), after giving effect to such Property Release, the Lease Coverage Ratio as of the Release Date for all of the Individual Properties then remaining subject to the Liens of the Security Instrument shall not be less than the greater of (A) the Closing Date Lease Coverage Ratio and (B) the Lease Coverage Ratio for the Individual Properties subject to the Lien of the Security Instrument immediately prior to the Release Date; (vii) no Event of Default shall have occurred and then be continuing on the date on which Borrower delivers the Property Release Notice or on the Release Date (except as provided in the last grammatical paragraph of this Section 2.3.6(a)); (viii) the Release Property is simultaneously transferred pursuant to a bona fide all-cash sale on arms-length terms and conditions; (ix) Borrower shall cause First Mezzanine Borrower to cause Mortgage Borrower to execute and deliver such other instruments, certificates, opinions of counsel and documentation as Mortgage Lender shall reasonably request in order to preserve, confirm or secure the Liens and security granted to Mortgage Lender by the Mortgage Loan Documents, including any amendments, modifications or supplements to any of the Mortgage Loan Documents; (x) Borrower shall pay for any and all reasonable out-of-pocket costs and expenses incurred in connection with any proposed Property Release, including Lender’s reasonable attorneys’ fees and disbursements; (xi) prior to the Release Date, Borrower shall deliver to Lender evidence reasonably satisfactory to Lender that all amounts owing to any parties in connection with the transaction relating to the proposed Property Release have been paid in full, or will simultaneously be paid in full on the Release Date or adequate reserves therefor are established by Borrower in cash with respect to contingent or other liabilities that may arise out of such transaction and for which Borrower is not adequately indemnified or insured against as reasonably determined by Lender; (xii) as a condition precedent to a Property Release, on the Release Date, Borrower shall cause (a) First Mezzanine Borrower to satisfy all conditions to such Property Release set forth in the First Mezzanine Loan Documents and (b) First Mezzanine Borrower to cause Mortgage Borrower to satisfy all conditions to such Property Release set forth in the Mortgage Loan Documents; (xiii) reserved; (xiv) the transfer of the Release Property in connection with the Property Release does not trigger any rights of first refusal or purchase options in any Operating Agreements, including, but not limited to the rights or obligations set forth on Schedule VI of the Mortgage Loan Agreement as to any remaining Property unless the same have been waived or terminated by the holder thereof; (xv) following such Property Release, each Senior Borrower and Borrower shall each continue to be a Single Purpose Entity and comply with all provisions of the Loan Documents pertaining to a Single Purpose Entity; and (xvi) Borrower shall cause First Mezzanine Borrower to cause Mortgage Borrower to enter into an amendment to the Master Lease with Master Lessee (A) to effect the reduction in the Master Lease Base Rent by an amount not to exceed the amount allocable to such Individual Property as set forth on Schedule IV to the Mortgage Loan Agreement, and (B) to cause such Release Property to be removed from the Master Lease, including amending the legal description of the “Leased Property” (as defined therein) to effect such removal. Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, if on the date Borrower delivers a Property Release Notice, (a) a Default or Event of Default has occurred and is continuing which relates solely to the Individual Property or Individual Properties subject to the proposed Property Release (each or any such Default or Event of Default, a “Release Property-Specific Default”), (b) the Allocated Loan Amounts of such Individual Properties do not exceed, in the aggregate of all Individual Properties that are then subject to a Release Property-Specific Default, 15% of the Principal Amount, and (c) no other Default or Event of Default exists, Borrower shall not be prohibited from causing First Mezzanine Borrower to cause Mortgage Borrower to exercise a release with respect to such Individual Property or Individual Properties and such Release-Property-Specific Default will be deemed to have been cured upon completion of the Property Release of such Individual Property or Individual Properties by (1) delivery of such Property Release Notice and (2) completion of the Property Release of such Individual Property or Individual Properties; provided, that, if Borrower fails to cause First Mezzanine Borrower to cause Mortgage Borrower to complete the Property Release of each Individual Property then subject to a Release-Property-Specific Default by a Release Date that is not more than forty-five (45) days after receiving written notice from Lender or otherwise obtaining actual knowledge of the occurrence of such Release Property-Specific Default, such Default or Event of Default shall be deemed not to have been cured by delivery of such Property Release Notice and shall be retroactive to the date such Default or Event of Default first occurred.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Bloomin' Brands, Inc.)
Individual Properties. In the event Mortgage Borrower requests the release of any Individual Property from the Lien of the applicable Security Instrument and related Mortgage Loan Documents (or to the extent so requested by Mortgage Borrower, the assignment of the Lien of the applicable Security Instrument to a new lender without representation, warranty or recourse) (each release under this Section 2.3.6, a “Property Release”), subject to satisfaction of each of the conditions set forth below with respect to such Individual Property, Lender shall consent to such Property Release and the other actions to be taken by Mortgage Lender in accordance with Section 2.3.6 of the Mortgage Loan Agreement with respect to such Individual Property (each a “Release Property”):
(i) Borrower shall deliver a written notice (a “Property Release Notice”) to Lender of its desire to cause First Mezzanine Borrower to cause Mortgage Borrower to effect such Property Release no later than thirty (30) days prior to the date of such desired Property Release, and setting forth the Business Day (the “Release Date”) on which Borrower desires that Mortgage Lender release its interest in such Release Property (provided such Property Release Notice shall be revocable at any time and for any reason by Borrower and may be adjourned on a day-to-day basis on reasonable notice to Lender, but Borrower shall pay any actual reasonable out-of-pocket expenses incurred by Lender in connection with such revocation and/or adjournment);
(ii) Borrower shall cause First Mezzanine Borrower to cause Mortgage Borrower to either:
(A) if the outstanding principal balance of the Floating Rate Component (Mortgage) is greater than or equal to the Combined Release Price for the Release Property, pay to Mortgage Lender (x) the Combined Release Price for the Release Property, to be applied in reduction of the Floating Rate Component (Mortgage), (y) all Applicable Interest (Mortgage) on the portion of the Floating Rate Component (Mortgage) being repaid, and (z) all other sums due and payable under the Mortgage Loan Agreement, the Mortgage Note, the Security Instrument and the other Mortgage Loan Documents through and including the Release Date; or
(B) if the outstanding principal balance of the Floating Rate Component (Mortgage) has previously been reduced to zero, partially defease the Fixed Rate Components (Mortgage) in an aggregate amount equal to the Release Price (Mortgage) for the Release Property, in accordance with Section 2.4.2 of the Mortgage Loan Agreement; or
(C) if the outstanding principal balance of the Floating Rate Component (Mortgage) is greater than zero but less than the Combined Release Price for the Release Property, then (x) pay to Mortgage Lender the outstanding principal balance of the Floating Rate Component (Mortgage), to be applied in reduction of the Floating Rate Component (Mortgage), (y) pay to Mortgage Lender the amounts specified in clauses (y) and (z) of subparagraph (ii)(A) above, and (z) if and only if the outstanding principal balance of the Floating Rate Component (Mortgage) being repaid pursuant to clause (x) of this subparagraph (C) is less than the Release Price (Mortgage) for the Release Property, partially defease the Fixed Rate Components (Mortgage) in an amount equal to the positive difference between the Release Price (Mortgage) for the Release Property and the outstanding principal balance of the Floating Rate Component (Mortgage) being repaid, in accordance with Section 2.4.2 of the Mortgage Loan Agreement;
(iii) as a condition precedent to a Property Release when the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Combined Release Price for the Release Property, on the Release Date, Borrower shall cause First Mezzanine Lender to partially defease the First Mezzanine Loan in accordance with the provisions of the First Mezzanine Loan Agreement, in an amount equal to either:
(A) if the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Release Price (Mortgage) or has previously been reduced to zero, then the Release Price (First Mezzanine) for the Release Property; otherwise
(B) the amount by which the Combined Release Price for the Release Property exceeds the outstanding principal balance of the Floating Rate Component (Mortgage), multiplied by a fraction, the numerator of which is the principal balance of the First Mezzanine Loan immediately prior to the Property Release, and the denominator of which is the aggregate principal balance of all Mezzanine Loans immediately prior to the Property Release.
(iv) as a condition precedent to a Property Release when the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Combined Release Price for the Release Property, on the Release Date, Borrower shall partially defease the Loan in accordance with the provisions of this Agreement, in an amount equal to either:
(A) if the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Release Price (Mortgage) or has previously been reduced to zero, then the applicable Release Price for the Release Property; otherwise
(B) the amount by which the Combined Release Price for the Release Property exceeds the outstanding principal balance of the Floating Rate Component (Mortgage), multiplied by a fraction, the numerator of which is the principal balance of the Loan immediately prior to the Property Release, and the denominator of which is the aggregate principal balance of all Mezzanine Loans immediately prior to the Property Release.
(iv) as a condition precedent to a Property Release when the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Combined Release Price for the Release Property, but not as a direct covenant of Borrower, on the Release Date, Second Mezzanine Borrower shall partially defease the Second Mezzanine Loan in accordance with the provisions of the Second Mezzanine Loan Agreement, in an amount equal to either:
(A) if the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Release Price (Mortgage) or has previously been reduced to zero, then the applicable Release Price (Second Mezzanine) for the Release Property; otherwise
(B) the amount by which the Combined Release Price for the Release Property exceeds the outstanding principal balance of the Floating Rate Component (Mortgage), multiplied by a fraction, the numerator of which is the principal balance of the Second Mezzanine Loan immediately prior to the Property Release, and the denominator of which is the aggregate principal balance of all Mezzanine Loans immediately prior to the Property Release. This paragraph (iv) shall not create a debtor-creditor relationship between Borrower and Second Mezzanine Lender;
(v) Borrower shall deliver to Lender not less than ten (10) Business Days prior to the Release Date (which must be on a Business Day) all documentation that may be reasonably required by Lender to be delivered by Borrower in connection with such Property Release (collectively, “Release Instruments”), together with an Officer’s Certificate certifying that (A) any and all Release Instruments, if applicable, are in compliance with all Legal Requirements, (B) the release to be effected will not violate the terms of this Agreement, (C) the release to be effected will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released and (D) the requirement described in paragraph (vi) below is satisfied in connection with such Property Release (together with calculations and supporting documentation demonstrating the same in reasonable detail);
(vi) with respect to any Property Release (other than an Excluded Release), after giving effect to such Property Release, the Lease Coverage Ratio as of the Release Date for all of the Individual Properties then remaining subject to the Liens of the Security Instrument shall not be less than the greater of (A) the Closing Date Lease Coverage Ratio and (B) the Lease Coverage Ratio for the Individual Properties subject to the Lien of the Security Instrument immediately prior to the Release Date;
(vii) no Event of Default shall have occurred and then be continuing on the date on which Borrower delivers the Property Release Notice or on the Release Date (except as provided in the last grammatical paragraph of this Section 2.3.6(a));
(viii) the Release Property is simultaneously transferred pursuant to a bona fide all-cash sale on arms-length terms and conditions;
(ix) Borrower shall cause First Mezzanine Borrower to cause Mortgage Borrower to execute and deliver such other instruments, certificates, opinions of counsel and documentation as Mortgage Lender shall reasonably request in order to preserve, confirm or secure the Liens and security granted to Mortgage Lender by the Mortgage Loan Documents, including any amendments, modifications or supplements to any of the Mortgage Loan Documents;
(x) Borrower shall pay for any and all reasonable out-of-pocket costs and expenses incurred in connection with any proposed Property Release, including Lender’s reasonable attorneys’ fees and disbursements;
(xi) prior to the Release Date, Borrower shall deliver to Lender evidence reasonably satisfactory to Lender that all amounts owing to any parties in connection with the transaction relating to the proposed Property Release have been paid in full, or will simultaneously be paid in full on the Release Date or adequate reserves therefor are established by Borrower in cash with respect to contingent or other liabilities that may arise out of such transaction and for which Borrower is not adequately indemnified or insured against as reasonably determined by Lender;
(xii) as a condition precedent to a Property Release, on the Release Date, Borrower shall cause (a) First Mezzanine Borrower to satisfy all conditions to such Property Release set forth in the First Mezzanine Loan Documents and (b) First Mezzanine Borrower to cause Mortgage Borrower to satisfy all conditions to such Property Release set forth in the Mortgage Loan Documents;
(xiii) reservedas a condition precedent to a Property Release but not as a direct covenant of Borrower, on the Release Date, Second Mezzanine Borrower shall have satisfied all conditions to such Property Release set forth in the Second Mezzanine Loan Documents; provided that this paragraph (xiii) shall not create a debtor-creditor relationship between Borrower and Second Mezzanine Lender;
(xiv) the transfer of the Release Property in connection with the Property Release does not trigger any rights of first refusal or purchase options in any Operating Agreements, including, but not limited to the rights or obligations set forth on Schedule VI of the Mortgage Loan Agreement as to any remaining Property unless the same have been waived or terminated by the holder thereof;
(xv) following such Property Release, each Senior Mortgage Borrower and Borrower shall each continue to be a Single Purpose Entity and comply with all provisions of the Loan Documents pertaining to a Single Purpose Entity; and
(xvi) Borrower shall cause First Mezzanine Borrower to cause Mortgage Borrower to enter into an amendment to the Master Lease with Master Lessee (A) to effect the reduction in the Master Lease Base Rent by an amount not to exceed the amount allocable to such Individual Property as set forth on Schedule IV to the Mortgage Loan Agreement, and (B) to cause such Release Property to be removed from the Master Lease, including amending the legal description of the “Leased Property” (as defined therein) to effect such removal. Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, if on the date Borrower delivers a Property Release Notice, (a) a Default or Event of Default has occurred and is continuing which relates solely to the Individual Property or Individual Properties subject to the proposed Property Release (each or any such Default or Event of Default, a “Release Property-Specific Default”), (b) the Allocated Loan Amounts of such Individual Properties do not exceed, in the aggregate of all Individual Properties that are then subject to a Release Property-Specific Default, 15% of the Principal Amount, and (c) no other Default or Event of Default exists, Borrower shall not be prohibited from causing First Mezzanine Borrower to cause Mortgage Borrower to exercise a release with respect to such Individual Property or Individual Properties and such Release-Property-Specific Default will be deemed to have been cured upon completion of the Property Release of such Individual Property or Individual Properties by (1) delivery of such Property Release Notice and (2) completion of the Property Release of such Individual Property or Individual Properties; provided, that, if Borrower fails to cause First Mezzanine Borrower to cause Mortgage Borrower to complete the Property Release of each Individual Property then subject to a Release-Property-Specific Default by a Release Date that is not more than forty-five (45) days after receiving written notice from Lender or otherwise obtaining actual knowledge of the occurrence of such Release Property-Specific Default, such Default or Event of Default shall be deemed not to have been cured by delivery of such Property Release Notice and shall be retroactive to the date such Default or Event of Default first occurred.
Appears in 1 contract
Sources: Mezzanine Loan and Security Agreement (Bloomin' Brands, Inc.)
Individual Properties. In Borrower agrees to reimburse its pro rata share (based on the event Mortgage Borrower requests the release of any Individual Property from the Lien percentage of the applicable Security Instrument aggregate loan amount included in the Securitization represented by the principal amount of the Loan) of third party fees and related Mortgage Loan Documents (expenses in connection with the Securitization, including, but not limited to, legal fees and disbursements, third-party due diligence expenses, Rating Agency fees and expenses, the costs of providing appraisals, environmental reports and engineering reports as required by the Rating Agencies, and any servicing, Trustee or special servicing fees and expenses, provided, however, that the third party fees and expenses to be reimbursed by Borrower shall not exceed the Securitization Expense Reserve Amount. In connection with the Securitization, Lender intends to use the Engineering Reports, the Environmental Reports and other third party reports, updated as necessary due to the age of such reports, to the extent so requested permitted by Mortgage Borrowerthe Rating Agencies. On the Closing Date, the assignment proceeds of the Lien of the applicable Security Instrument to a new lender without representation, warranty or recourse) (each release under this Section 2.3.6, a “Property Release”), subject to satisfaction of each of the conditions set forth below with respect to such Individual Property, Lender shall consent to such Property Release and the other actions to be taken by Mortgage Lender in accordance with Section 2.3.6 of the Mortgage Loan Agreement with respect to such Individual Property (each a “Release Property”):
(i) Borrower shall deliver a written notice (a “Property Release Notice”) to Lender of its desire to cause First Mezzanine Borrower to cause Mortgage Borrower to effect such Property Release no later than thirty (30) days prior to the date of such desired Property Release, and setting forth the Business Day (the “Release Date”) on which Borrower desires that Mortgage Lender release its interest in such Release Property (provided such Property Release Notice shall be revocable at any time and for any reason by Borrower and may be adjourned on a day-to-day basis on reasonable notice to Lender, but Borrower shall pay any actual reasonable out-of-pocket expenses incurred by Lender in connection with such revocation and/or adjournment);
(ii) Borrower shall cause First Mezzanine Borrower to cause Mortgage Borrower to either:
(A) if the outstanding principal balance of the Floating Rate Component (Mortgage) is greater than or equal to the Combined Release Price for the Release Property, pay to Mortgage Lender (x) the Combined Release Price for the Release Property, to be applied in reduction of the Floating Rate Component (Mortgage), (y) all Applicable Interest (Mortgage) on the portion of the Floating Rate Component (Mortgage) being repaid, and (z) all other sums due and payable under the Mortgage Loan Agreement, the Mortgage Note, the Security Instrument and the other Mortgage Loan Documents through and including the Release Date; or
(B) if the outstanding principal balance of the Floating Rate Component (Mortgage) has previously been reduced to zero, partially defease the Fixed Rate Components (Mortgage) in an aggregate amount equal to the Release Price (Mortgage) for the Release Property, in accordance with Section 2.4.2 of the Mortgage Loan Agreement; or
(C) if the outstanding principal balance of the Floating Rate Component (Mortgage) is greater than zero but less than the Combined Release Price for the Release Property, then (x) pay to Mortgage Lender the outstanding principal balance of the Floating Rate Component (Mortgage), to be applied in reduction of the Floating Rate Component (Mortgage), (y) pay to Mortgage Lender the amounts specified in clauses (y) and (z) of subparagraph (ii)(A) above, and (z) if and only if the outstanding principal balance of the Floating Rate Component (Mortgage) being repaid pursuant to clause (x) of this subparagraph (C) is less than the Release Price (Mortgage) for the Release Property, partially defease the Fixed Rate Components (Mortgage) in an amount equal to the positive difference between Securitization Expense Reserve Amount shall be deposited into the Release Price Securitization Expense Sub-Account. Within 90 days from the Securitization Closing Date, Lender shall provide Borrower with an itemized bill ▇▇ the third party fees and expenses for which it seeks reimbursement from Borrower. Within 30 days from the delivery of such bill ▇▇ Borrower, the funds in the Securitization Expense Sub-Account shall be applied to reimburse Lender for such expenses, with any remaining funds in the Securitization Expense Sub-Account to be returned to Borrower on the next Payment Date. On or prior to the Securitization Closing Date, Borrower and AA shall execute and deliver to Lender an instrument (Mortgagein form and substance reasonably satisfactory to Lender, Borrower and AA) for the Release Property indemnifying and the outstanding principal balance of the Floating Rate Component holding Lender and its controlling Persons and Affiliates harmless against all costs, expenses and damages incurred by Lender and its controlling Persons and Affiliates (Mortgage) being repaidincluding, in accordance with Section 2.4.2 of the Mortgage Loan Agreement;
(iiiwithout limitation, all liabilities under all applicable federal and state securities laws) as a condition precedent to direct result of any untrue statement of a Property Release when material fact contained in such offering documents based on information provided by, or on behalf of, Borrower which describes Borrower, AA, the outstanding principal balance Individual Properties (and the management thereof) or any aspect of the Floating Rate Component (Mortgage) is less than the Combined Release Price for the Release PropertyLoan, on the Release Date, Borrower shall cause First Mezzanine Lender to partially defease the First Mezzanine Loan or as a result of any untrue statement of material fact in accordance with the provisions any of the First Mezzanine Loan Agreementfinancial statements of Borrower or AA incorporated into the offering documents or the failure to include in such financial statements or in such offering documents any material fact relating to Borrower, in an amount equal to either:
(A) if the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Release Price (Mortgage) or has previously been reduced to zero, then the Release Price (First Mezzanine) for the Release Property; otherwise
(B) the amount by which the Combined Release Price for the Release Property exceeds the outstanding principal balance of the Floating Rate Component (Mortgage), multiplied by a fractionAA, the numerator of which is the principal balance of the First Mezzanine Loan immediately prior to the Property Release, Individual Properties (and the denominator of which is the aggregate principal balance of all Mezzanine Loans immediately prior to the Property Release.
(ivmanagement thereof) as a condition precedent to a Property Release when the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Combined Release Price for the Release Property, on the Release Date, Borrower shall partially defease the Loan in accordance with the provisions of this Agreement, in an amount equal to either:
(A) if the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Release Price (Mortgage) or has previously been reduced to zero, then the applicable Release Price for the Release Property; otherwise
(B) the amount by which the Combined Release Price for the Release Property exceeds the outstanding principal balance of the Floating Rate Component (Mortgage), multiplied by a fraction, the numerator of which is the principal balance and any aspect of the Loan immediately prior to the Property Release, and the denominator of which is the aggregate principal balance of all Mezzanine Loans immediately prior to the Property Release.
(v) Borrower shall deliver to Lender not less than ten (10) Business Days prior to the Release Date (which must be on a Business Day) all documentation that may be reasonably required by Lender to be delivered by Borrower in connection with such Property Release (collectively, “Release Instruments”), together with an Officer’s Certificate certifying that (A) any and all Release Instruments, if applicable, are in compliance with all Legal Requirements, (B) the release to be effected will not violate the terms of this Agreement, (C) the release to be effected will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released and (D) the requirement described in paragraph (vi) below is satisfied in connection with such Property Release (together with calculations and supporting documentation demonstrating the same in reasonable detail);
(vi) with respect to any Property Release (other than an Excluded Release), after giving effect to such Property Release, the Lease Coverage Ratio as of the Release Date for all of the Individual Properties then remaining subject to the Liens of the Security Instrument shall not be less than the greater of (A) the Closing Date Lease Coverage Ratio and (B) the Lease Coverage Ratio for the Individual Properties subject to the Lien of the Security Instrument immediately prior to the Release Date;
(vii) no Event of Default shall have occurred and then be continuing on the date on which Borrower delivers the Property Release Notice or on the Release Date (except as provided in the last grammatical paragraph of this Section 2.3.6(a));
(viii) the Release Property is simultaneously transferred pursuant to a bona fide all-cash sale on arms-length terms and conditions;
(ix) Borrower shall cause First Mezzanine Borrower to cause Mortgage Borrower to execute and deliver such other instruments, certificates, opinions of counsel and documentation as Mortgage Lender shall reasonably request necessary in order to preservemake the statements therein, confirm or secure the Liens and security granted to Mortgage Lender by the Mortgage Loan Documents, including any amendments, modifications or supplements to any in light of the Mortgage Loan Documents;
(x) Borrower shall pay for any and all reasonable out-of-pocket costs and expenses incurred in connection with any proposed Property Releasecircumstances under which they were made, including Lender’s reasonable attorneys’ fees and disbursements;
(xi) prior to the Release Date, Borrower shall deliver to Lender evidence reasonably satisfactory to Lender that all amounts owing to any parties in connection with the transaction relating to the proposed Property Release have been paid in full, or will simultaneously be paid in full on the Release Date or adequate reserves therefor are established by Borrower in cash with respect to contingent or other liabilities that may arise out of such transaction and for which Borrower is not adequately indemnified or insured against as reasonably determined by Lender;
(xii) as a condition precedent to a Property Release, on the Release Date, Borrower shall cause (a) First Mezzanine Borrower to satisfy all conditions to such Property Release set forth in the First Mezzanine Loan Documents and (b) First Mezzanine Borrower to cause Mortgage Borrower to satisfy all conditions to such Property Release set forth in the Mortgage Loan Documents;
(xiii) reserved;
(xiv) the transfer of the Release Property in connection with the Property Release does not trigger any rights of first refusal or purchase options in any Operating Agreements, including, but not limited to the rights or obligations set forth on Schedule VI of the Mortgage Loan Agreement as to any remaining Property unless the same have been waived or terminated by the holder thereof;
(xv) following such Property Release, each Senior Borrower and Borrower shall each continue to be a Single Purpose Entity and comply with all provisions of the Loan Documents pertaining to a Single Purpose Entity; and
(xvi) Borrower shall cause First Mezzanine Borrower to cause Mortgage Borrower to enter into an amendment to the Master Lease with Master Lessee (A) to effect the reduction in the Master Lease Base Rent by an amount not to exceed the amount allocable to such Individual Property as set forth on Schedule IV to the Mortgage Loan Agreement, and (B) to cause such Release Property to be removed from the Master Lease, including amending the legal description of the “Leased Property” (as defined therein) to effect such removal. Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, if on the date Borrower delivers a Property Release Notice, (a) a Default or Event of Default has occurred and is continuing which relates solely to the Individual Property or Individual Properties subject to the proposed Property Release (each or any such Default or Event of Default, a “Release Property-Specific Default”), (b) the Allocated Loan Amounts of such Individual Properties do not exceed, in the aggregate of all Individual Properties that are then subject to a Release Property-Specific Default, 15% of the Principal Amount, and (c) no other Default or Event of Default exists, Borrower shall not be prohibited from causing First Mezzanine Borrower to cause Mortgage Borrower to exercise a release with respect to such Individual Property or Individual Properties and such Release-Property-Specific Default will be deemed to have been cured upon completion of the Property Release of such Individual Property or Individual Properties by (1) delivery of such Property Release Notice and (2) completion of the Property Release of such Individual Property or Individual Propertiesmisleading; provided, thathowever, if that Borrower fails shall have had an opportunity to cause First Mezzanine Borrower to cause Mortgage Borrower to complete review and shall have approved the Property Release of each Individual Property then subject to a Release-Property-Specific Default by a Release Date that is not more than forty-five (45) days after receiving written notice from Lender or otherwise obtaining actual knowledge relevant portions of the occurrence of offering documents; and provided, further, that Borrower shall have no such Release Property-Specific Default, such Default or Event of Default shall be deemed not to have been cured by delivery of such Property Release Notice and shall be retroactive to the date such Default or Event of Default first occurred.obligation with respect to
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Individual Properties. In Subject to satisfaction of each of the event Mortgage Borrower requests the release of conditions set forth below with respect to any Individual Property, Lender shall (w) release such Individual Property (each a “Release Property”) from the Lien of the applicable Security Instrument and related Mortgage Loan Documents (or to the extent so requested by Mortgage Borrower, the assignment of assign the Lien of the applicable Security Instrument to a new lender without representation, warranty or recourse) (each release under this Section 2.3.6, a “Property Release”), (x) authorize a reduction in the notional amount of the Interest Rate Cap Agreement equal to the reduction of the outstanding principal balance of the Floating Rate Component, if any, (y) instruct the Cash Management Bank to return to Borrower any Excess Account Collateral subject to satisfaction of each of the conditions set forth below with respect to such Individual Property, Lender shall consent to such Property Release and the other actions to be taken by Mortgage Lender in accordance with Section 2.3.6 of 2.3.8 except to the Mortgage Loan Agreement extent otherwise provided in such Section, and (z) comply with respect Section 2.3.9 with regard to such Individual Property (each a “Release Property”):adjusting the ongoing reserve requirements hereunder:
(i) Borrower shall deliver a written notice (a “Property Release Notice”) to Lender of its desire to cause First Mezzanine Borrower to cause Mortgage Borrower to effect such Property Release no later than thirty (30) days prior to the date of such desired Property Release, and setting forth the Business Day (the “Release Date”) on which Borrower desires that Mortgage Lender release its interest in such Release Property (provided such Property Release Notice shall be revocable at any time and for any reason by Borrower and may be adjourned on a day-to-day basis on reasonable notice to Lender, but Borrower shall pay any actual reasonable out-of-pocket expenses incurred by Lender in connection with such revocation and/or adjournment);
(ii) Borrower shall cause First Mezzanine Borrower to cause Mortgage Borrower to either:
(A) if the outstanding principal balance of the Floating Rate Component (Mortgage) is greater than or equal to the Combined Release Price for the Release Property, then Borrower shall pay to Mortgage Lender (x) the Combined Release Price for the Release Property, to be applied in reduction of the Floating Rate Component (Mortgage)Component, (y) all Applicable Interest (Mortgage) on the portion of the Floating Rate Component (Mortgage) being repaid, and (z) all other sums due and payable under the Mortgage Loan this Agreement, the Mortgage Note, the Security Instrument and the other Mortgage Loan Documents through and including the Release Date; or
(B) if the outstanding principal balance of the Floating Rate Component (Mortgage) has previously been reduced to zero, then Borrower shall partially defease the Fixed Rate Components (Mortgage) in an aggregate amount equal to the Release Price (Mortgage) for the Release Property, in accordance with Section 2.4.2 of the Mortgage Loan Agreement2.4.2; or
(C) if the outstanding principal balance of the Floating Rate Component (Mortgage) is greater than zero but less than the Combined Release Price for the Release Property, then Borrower shall (x) pay to Mortgage Lender the outstanding principal balance of the Floating Rate Component (Mortgage)Component, to be applied in reduction of the Floating Rate Component (Mortgage)Component, (y) pay to Mortgage Lender the amounts specified in clauses (y) and (z) of subparagraph (ii)(A) above, and (z) if and only if the outstanding principal balance of the Floating Rate Component (Mortgage) being repaid pursuant to clause (x) of this subparagraph (C) is less than the Release Price (Mortgage) for the Release Property, partially defease the Fixed Rate Components (Mortgage) in an amount equal to the positive difference between the Release Price (Mortgage) for the Release Property and the outstanding principal balance of the Floating Rate Component (Mortgage) being repaid, in accordance with Section 2.4.2 of the Mortgage Loan Agreement;2.4.2.
(iii) as a condition precedent to a Property Release when the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Combined Release Price for the Release Property, but not as a direct covenant of Borrower, on the Release Date, each Mezzanine Borrower shall cause First Mezzanine Lender to partially defease the First its related Mezzanine Loan in accordance with the provisions of the First applicable Mezzanine Loan Agreement, in an amount equal to either:
(A) if the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Release Price (Mortgage) or has previously been reduced to zero, then the applicable Release Price (First Mezzanine) for the Release Property; otherwise
(B) the amount by which the Combined Release Price for the Release Property exceeds the outstanding principal balance of the Floating Rate Component Component, multiplied
(Mortgage), multiplied by a) (iii) shall not create a fraction, the numerator of which is the principal balance of the First debtor-creditor relationship between Borrower and any Mezzanine Loan immediately prior to the Property Release, and the denominator of which is the aggregate principal balance of all Mezzanine Loans immediately prior to the Property Release.Lender;
(iv) as a condition precedent to a Property Release when the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Combined Release Price for the Release Property, on the Release Date, Borrower shall partially defease the Loan in accordance with the provisions of this Agreement, in an amount equal to either:
(A) if the outstanding principal balance of the Floating Rate Component (Mortgage) is less than the Release Price (Mortgage) or has previously been reduced to zero, then the applicable Release Price for the Release Property; otherwise
(B) the amount by which the Combined Release Price for the Release Property exceeds the outstanding principal balance of the Floating Rate Component (Mortgage), multiplied by a fraction, the numerator of which is the principal balance of the Loan immediately prior to the Property Release, and the denominator of which is the aggregate principal balance of all Mezzanine Loans immediately prior to the Property Release.
(v) Borrower shall deliver submit to Lender not less than ten (10) Business Days prior to the Release Date (which must be on a Business Day), a release of Liens (and related Loan Documents) for each applicable Release Property (for execution by Lender) in a form appropriate in the applicable state and otherwise satisfactory to Lender in its reasonable discretion and all other documentation that may be Lender reasonably required by Lender requires to be delivered by Borrower in connection with such Property Release (collectively, “Release Instruments”)) for each applicable Release Property, together with an Officer’s Certificate certifying that (A) any and all the Release Instruments, if applicable, Instruments are in compliance with all Legal Requirements, (B) the release to be effected will not violate the terms of this Agreement, (C) the release to be effected will not impair or otherwise adversely affect the Liens, security interests and other rights of Lender under the Loan Documents not being released (or as to the Properties subject to the Loan Documents not being released) and (D) the requirement described in paragraph (viv) below is satisfied in connection with such Property Release (together with calculations and supporting documentation demonstrating the same in reasonable detail);
(viv) with respect to any Property Release (other than an Excluded Release), after giving effect to such Property Release, the Lease Coverage Ratio as of the Release Date for all of the Individual Properties then remaining subject to the Liens of the Security Instrument shall not be less than the greater of (A) the Closing Date Lease Coverage Ratio and (B) the Lease Coverage Ratio for the Individual Properties subject to the Lien of the Security Instrument immediately prior to the Release Date;
(viivi) no Event of Default shall have occurred and then be continuing on the date on which Borrower delivers the Property Release Notice or on the Release Date (except as provided in the last grammatical paragraph of this Section 2.3.6(a));
(viiivii) the Release Property is simultaneously transferred pursuant to a bona fide all-cash sale on arms-length terms and conditions;
(ixviii) Borrower shall cause First Mezzanine Borrower to cause Mortgage Borrower to execute executes and deliver delivers such other instruments, certificates, opinions of counsel and documentation as Mortgage Lender and the Rating Agencies shall reasonably request in order to preserve, confirm or secure the Liens and security granted to Mortgage Lender by the Mortgage Loan Documents, including any amendments, modifications or supplements to any of the Mortgage Loan Documents;
(xix) Borrower shall pay for any and all reasonable out-of-pocket costs and expenses incurred in connection with any proposed Property Release, including Lender’s reasonable attorneys’ fees and disbursements;
(xix) prior to the Release Date, Borrower shall deliver to Lender evidence reasonably satisfactory to Lender that all amounts owing to any parties in connection with the transaction relating to the proposed Property Release have been paid in full, or will simultaneously be paid in full on the Release Date or adequate reserves therefor are established by Borrower in cash with respect to contingent or other liabilities that may arise out of such transaction and for which Borrower is not adequately indemnified or insured against as reasonably determined by Lender;
(xiixi) as a condition precedent to a Property ReleaseRelease but not as a direct covenant of the Borrower, on the Release Date, each Mezzanine Borrower shall cause (a) First Mezzanine Borrower to satisfy have satisfied all conditions to such Property Release set forth in the First applicable Mezzanine Loan Documents Documents; provided that this paragraph shall not create a debtor-creditor relationship between Borrower and (b) First any Mezzanine Borrower to cause Mortgage Borrower to satisfy all conditions to such Property Release set forth in the Mortgage Loan DocumentsLender;
(xiii) reserved;
(xivxii) the transfer of the Release Property in connection with the Property Release does not trigger any rights of first refusal or purchase options in any Operating Agreements, including, but not limited to the rights or obligations set forth on Schedule VI of the Mortgage Loan Agreement as to any remaining Property unless the same have been waived or terminated by the holder thereof;
(xvxiii) following such Property Release, each Senior Borrower and Borrower shall each continue to be a Single Purpose Entity and comply with all provisions of the Loan Documents pertaining to a Single Purpose Entity; and
(xvixiv) Borrower shall cause First Mezzanine Borrower to cause Mortgage Borrower to enter into an amendment to the Master Lease with Master Lessee (A) to effect the reduction in the Master Lease Base Rent by an amount not to exceed the amount allocable to such Individual Property as set forth on Schedule IV to the Mortgage Loan Agreementattached hereto, and (B) to cause such Release Property to be removed from the Master Lease, including amending the legal description of the “Leased Property” (as defined therein) to effect such removal. Notwithstanding anything to the contrary in this Agreement or the other Loan Documents, if on the date Borrower delivers a Property Release Notice, (a) a Default or Event of Default has occurred and is continuing which relates solely to the Individual Property or Individual Properties subject to the proposed Property Release (each or any such Default or Event of Default, a “Release Property-Specific Default”), (b) the Allocated Loan Amounts of such Individual Properties do not exceed, in the aggregate of all Individual Properties that are then subject to a Release Property-Specific Default, 15% of the Principal Amount, and (c) no other Default or Event of Default exists, Borrower shall not be prohibited from causing First Mezzanine Borrower to cause Mortgage Borrower to exercise exercising a release with respect to such Individual Property or Individual Properties and such Release-Property-Specific Default will be deemed to have been cured upon completion of the Property Release of such Individual Property or Individual Properties by (1) delivery of such Property Release Notice and (2) completion of the Property Release of such Individual Property or Individual Properties; provided, that, if Borrower fails to cause First Mezzanine Borrower to cause Mortgage Borrower to complete the Property Release of each Individual Property then subject to a Release-Property-Specific Default by a Release Date that is not more than forty-five (45) days after receiving written notice from Lender or otherwise obtaining actual knowledge of the occurrence of such Release Property-Specific Default, such Default or Event of Default shall be deemed not to have been cured by delivery of such Property Release Notice and shall be retroactive to the date such Default or Event of Default first occurred.
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Sources: Loan and Security Agreement (Bloomin' Brands, Inc.)