Sale of Note and Securitization. At the request of the Lender and, to the extent not already required to be provided by Borrower under this Instrument, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction of rated single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in the Note and this Instrument, including, without limitation, to: (a) (i) provide such financial and other information with respect to the Mortgaged Property, the Borrower and the Property Manager, (ii) perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and (iii) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Mortgaged Property, Borrower and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies; (b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies; (c) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan; (d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this Section; and (e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.
Appears in 5 contracts
Sources: Multifamily Deed of Trust, Assignment of Rents and Security Agreement (NTS Realty Holdings Lp), Multifamily Mortgage, Assignment of Rents and Security Agreement (NTS Realty Holdings Lp), Multifamily Mortgage, Assignment of Rents and Security Agreement (NTS Realty Holdings Lp)
Sale of Note and Securitization. At the request (a) Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrumentor issue one or more participations therein, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization, including, without limitation, to:
(a) (i) provide such financial additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and other the Rating Agencies;
(ii) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrower, Principal and their respective affiliates to obtain, collect, and deliver information requested or required by Lender or the Rating Agencies;
(iii) deliver (A) updated opinions of counsel as to non-consolidation, due execution and enforceability with respect to the Mortgaged Property, the Borrower Borrower, Principal, Guarantor and their respective Affiliates and the Property Manager, (ii) perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionLoan Documents, and (iiiB) revised organizational documents for Borrower, which counsel opinions and organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or other agreements from parties to agreements that affect the Property, which estoppel letters, subordination agreements or other agreements shall be reasonably satisfactory to Lender and the Rating Agencies;
(v) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged Property, Borrower Borrower, Principal, Guarantor and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesDocuments;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cvi) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original Note or modify the original Note, this Agreement and the other Loan Documents to reflect multiple components of the Loan (and such new notes or modified Note shall have the same initial weighted average coupon of the original Note and provide for the same total amortization payments, but each such new note or modified Note may have different interest rates and provide for varying amortization payments), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transactionmost favorable rating levels and achieve the optimum rating levels for the Loan; provided, however, that the Borrower shall not be required to modify or amend any of the Loan Document Documents if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, have a material adverse economic effect on Borrower or (ii) modify or amend the Loan term, amortization or any other material economic term of the LoanLoan or otherwise materially adversely increase the obligations or materially decrease the rights of Borrower under the Loan Documents, including, without limitation, modifying the transfer, recourse, prepayment, events of default, or remedy provisions, or the organizational documents of Borrower or its Affiliates;
(dvii) pay all if requested by Lender, review any information regarding the Property, Borrower, Principal, Guarantor, Manager and the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any affiliate thereof; and
(viii) supply to Lender such documentation, financial statements and reports as may be in the possession or control of Borrower or its Affiliates in form and substance required in order to comply with any applicable securities laws.
(b) All reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Borrower in connection with ▇▇▇▇▇▇▇▇’s Borrower complying with requests made under this Section; and
Section 9.1 (e) in including, without limitation, the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs fees and expenses of the LenderRating Agencies) shall be paid by Borrower, Loan Servicer except that Lender shall reimburse Borrower for all such costs and each expenses in excess of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation$25,000.00.
Appears in 2 contracts
Sources: Loan Agreement (Maguire Properties Inc), Loan Agreement (Maguire Properties Inc)
Sale of Note and Securitization. At the request Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrumentor issue one or more participations therein, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which any Lender customarily adheres or which be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization including, without limitation, to:
(a) (i) provide such financial additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and other the Rating Agencies;
(ii) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrower and its Affiliates to obtain, collect, and deliver information requested or required by Lender or the Rating Agencies;
(iii) deliver (A) updated opinions of counsel as to non-consolidation, due execution and enforceability with respect to the Mortgaged Collateral, the First Mezzanine Collateral the Property, the Borrower, First Mezzanine Borrower, Mortgage Borrower and their Affiliates and the Property ManagerLoan Documents, including, without limitation, a so-called “10b-5” opinion and (iiB) perform revised Organizational Documents for Borrower, First Mezzanine Borrower and Mortgage Borrower which counsel opinions and Organizational Documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or permit or cause other agreements from parties to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of agreements that affect the Mortgaged Property, as may which estoppel letters, subordination agreements or other agreements shall be reasonably requested by the satisfactory to Lender or and the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and Agencies;
(iiiv) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged First Mezzanine Collateral, Collateral, Property, Borrower Borrower, First Mezzanine Borrower, Mortgage Borrower, Guarantor and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesDocuments;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cvi) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be reasonably requested by the Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original note) such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transaction; provided, however, that most favorable rating levels and achieve the Borrower shall not be required to modify or amend any optimum rating levels for the Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in portion thereof subject to the Note, or (ii) modify or amend any other material economic term of the LoanSecuritization;
(dvii) pay all reasonable third party costs if requested by Lender, review any information regarding the Property, the Collateral, Guarantor, Borrower, Mortgage Borrower and expenses incurred the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this SectionLender or any Affiliate thereof; and
(eviii) supply to Lender such documentation, financial statements and reports in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation form and substance reasonably required in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection comply with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmationapplicable securities laws.
Appears in 2 contracts
Sources: Second Mezzanine Loan Agreement, Second Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Sale of Note and Securitization. At the request (a) Borrowers acknowledge and agree that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, or require Borrowers to restructure the Loan into multiple notes (which may include component notes and/or senior and junior notes) and/or issue one or more participations therein, which restructuring may include reallocation of principal amounts of the Loan or the restructuring of a portion of the Loan into one or more mezzanine loans to the extent not already required to be provided direct or indirect owners of equity interests in either Borrower, secured by Borrower under this Instrumenta pledge of such interests, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that includes the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrowers under this InstrumentAgreement, includingBorrowers shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization, without limitation, including to:
(a) (i) provide such financial and other cause Mortgage Borrower to provide additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and the Rating Agencies;
(ii) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by either of the Borrowers, Principal and their respective Affiliates to obtain, collect, and deliver information requested or required by Lender or the Rating Agencies;
(iii) deliver (A) updated opinions of counsel as to non-consolidation, due execution and enforceability with respect to the Mortgaged PropertyProperties, the Borrower Collateral, Mortgage Borrowers, Borrowers, Principal, Guarantor and their respective Affiliates and the Property Manager, (ii) perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionLoan Documents, and (iiiB) revised organizational documents for each Borrower, which counsel opinions and organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or other agreements from parties to agreements that affect the Properties or the Collateral, which estoppel letters, subordination agreements or other agreements shall be reasonably satisfactory to Lender and the Rating Agencies;
(v) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged PropertyProperties, Borrower the Collateral, Mortgage Borrowers, Borrowers, Principal, Guarantor and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesDocuments;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cvi) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original Note or modify the original Note, this Agreement and the other Loan Documents to reflect multiple components of the Loan (and such new notes or modified Note shall have the same initial weighted average coupon of the original Note and provide for the same total amortization payments, but each such new note or modified Note may have different interest rates and provide for varying amortization payments), and modify the Mezzanine Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transactionmost favorable rating levels and achieve the optimum rating levels for the Loan; provided, however, that the Borrower Borrowers shall not be required to modify or amend any of the Loan Document Documents if such modification or amendment would (iA) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, have a material adverse economic effect on Borrowers or (iiB) modify or amend the Loan term, amortization or any other material economic term of the LoanLoan or otherwise materially adversely increase the obligations or materially decrease the rights of Borrowers under the Loan Documents, including modifying the transfer, recourse, prepayment, events of default, or remedy provisions, or the organizational documents of either of the Borrowers or its Affiliates;
(dvii) pay all if requested by Lender, review any information regarding the Properties, the Collateral, Mortgage Borrowers, Borrowers, Principal, Guarantor, Manager and the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any Affiliate thereof; and
(viii) supply to Lender such documentation, financial statements and reports as may be in the possession or control of any Borrower or its Affiliates in form and substance required in order to comply with any applicable securities laws.
(b) All reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Borrowers or Guarantor in connection with ▇▇▇▇▇▇▇▇’s Borrowers complying with requests made under this Sectionclause (a) of this
Section 9.1 (including the fees and expenses of the Rating Agencies) shall be paid by Borrowers, except that Lender shall reimburse Borrowers for all such costs and expenses in excess of $25,000.00.
(c) Notwithstanding the provisions of Section 9.1(a) hereof to the contrary, Borrowers covenant and agree that after the Closing Date and prior to a Securitization, Lender shall have the right to establish different interest rates and to reallocate the amortization and principal balances of each of the Loan and the Mortgage Loan between each other and to require the payment of the Loan and the Mortgage Loan in such order of priority as may be designated by Lender; andprovided, however, that the weighted average interest rate of the Loan and the Mortgage Loan following any such reallocation or modification shall not be changed from the weighted average interest rate in effect immediately preceding such reallocation or modification; but, provided further, that such modifications may, as a result of prepayments pursuant to which Lender expressly has the right to repay the Loan and the Mortgage Loan disproportionately, subsequently change the weighted average interest rate.
(d) In connection with a Securitization or other sale of all or a portion of the Loan, Lender shall have the right to modify all operative dates (including payment dates, interest period start dates and end dates, etc) under the Loan Documents, by up to ten (10) days (such action and all related action is a “Re-Dating”). Borrowers shall cooperate with Lender to implement any Re-Dating. If Borrowers fail to cooperate with Lender within ten (10) Business Days of written request by Lender, Lender is hereby appointed as Borrowers’ attorney-in-fact, coupled with an interest, to execute any and all documents necessary to accomplish the Re-Dating such power being irrevocable and coupled with an interest.
(e) All reasonable third party costs and expenses incurred by Borrowers, Guarantor or Lender in the event that the provisions connection with Borrowers complying with requests made under clauses (c) and (d) of this Instrument or any of Section 9.1 (including the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs fees and expenses of the Rating Agencies) shall be paid by Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.
Appears in 2 contracts
Sources: Loan Agreement (MPG Office Trust, Inc.), Loan Agreement (MPG Office Trust, Inc.)
Sale of Note and Securitization. At (a) Borrowers acknowledge and agree that, at any time from and after the request Closing Date, Lender may sell all or any portion of the Lender andLoan and the Loan Documents, or require Borrowers to restructure the Loan into multiple notes (which may include component notes and/or senior and junior notes) and/or issue one or more participations therein and/or syndicate the Loan, which restructuring may include the restructuring of a portion of the Loan to one or more of the foregoing or into one or more additional mezzanine loans to the extent not already required to be provided direct and/or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Borrower under this InstrumentLender and Borrowers and that are direct or indirect subsidiaries of HR Holdings, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres secured by a pledge of such interests, or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrowers under this InstrumentAgreement, Borrowers shall use commercially reasonable good faith efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization, including, without limitation, to:
(a) (i) provide such financial and additional and/or updated Provided Information or other information with respect to the Mortgaged PropertyProperties, the Borrower IP, the First Mezzanine Collateral, the Second Mezzanine Collateral and/or the Collateral reasonably requested or reasonably required by Lender, prospective investors or the Rating Agencies, together with, if customary or if otherwise requested by any Rating Agency, appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and the Property Manager, Rating Agencies;
(ii) perform review descriptive materials for presentations to any or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations all of the Mortgaged PropertyRating Agencies, as may be and work with third-party service providers engaged to obtain, collect, and deliver information reasonably requested or reasonably required by the Lender Lender, prospective investors or the Rating Agencies or Agencies;
(iii) if required by any Rating Agency, (A) deliver updated opinions of counsel as may be necessary or appropriate in connection to non-consolidation, due execution and enforceability with respect to the Secondary Market TransactionProperties, the IP, the Collateral, any Loan Party, HRHI, any Guarantor, any of their respective Affiliates and the Loan Documents, and (iiiB) make amend the Special Purpose Entity provisions of the organizational documents for each Loan Party, which counsel opinions and amendments to the organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such representations additional tenant estoppel letters, subordination agreements and/or other agreements from parties to agreements that affect any of the Properties, the IP or the Collateral, which estoppel letters, subordination agreements and warranties other agreements shall be reasonably satisfactory to Lender and the Rating Agencies;
(v) provide, as of the closing date of the Secondary Market Transaction with respect to the Mortgaged PropertySecuritization, Borrower updated representations and warranties made in the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, to the “Provided Information”), together, if customary, with appropriate verification and/or consents extent they are true as of the Provided Information through letters closing of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesSecuritization;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cvi) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be reasonably requested by the Lender or the Rating Agencies to effect such Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original note, but such new notes or modified note may change the interest rate of the Loan), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transaction; most favorable rating levels and achieve the optimum rating levels for the Loan, provided, however, that the Borrower shall (A) such new notes or modified note will not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note unless the varying interest rates shall have the same initial weighted average coupon of the original Note, (B) such amendments to the Loan Documents or (ii) the new notes or modified note will not modify or amend any other economic or material economic term of the LoanLoan in a manner materially adverse to any Loan Party, HRHI or Guarantors or any of their respective Constituent Members, or (C) such amendments to the Loan Documents will not materially increase any Loan Party’s or Guarantors’ obligations and liabilities under the Loan Documents or materially decrease the rights of Borrowers under the Loan Documents;
(dvii) if requested by Lender, review any information regarding any Property, the IP, the First Mezzanine Collateral, the Second Mezzanine Collateral, the Collateral, any Loan Party, any Mezzanine Borrower, HRHI, the Gaming Operator, any Manager, the Liquor Manager and/or the Loan which is contained in any preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any affiliate thereof; and
(viii) supply to Lender such documentation, financial statements and reports concerning any Loan Party, any Mezzanine Borrower, HRHI, any Guarantor, the Loan, any Property, the IP, the First Mezzanine Collateral, the Second Mezzanine Collateral and/or the Collateral in form and substance required in order to comply with any applicable securities laws.
(b) Lender shall pay all reasonable third party costs and expenses (excluding fees and expenses of Borrower’s legal counsel) in excess of Twenty Thousand Dollars ($20,000) incurred by ▇▇▇▇▇▇ Borrowers in connection with ▇▇▇▇▇▇▇▇’s Borrowers’ complying with requests made under this Section; andSection 9.1 and/or under Section 9.2 hereof, provided, however, the fees and expenses of Borrowers’ legal counsel and Borrowers’ administrative costs shall not be included in such amount and Borrowers shall remain at all times responsible for the fees and expenses of their legal counsel and their own administrative costs. In addition to the foregoing, Lender expressly acknowledges and agrees that Borrowers shall not be required to pay any Rating Agency surveillance charges.
(ec) Notwithstanding anything to the contrary contained in this Agreement, in the event of a Securitization that involves a participation or restructuring into one or more additional mezzanine loans, Borrowers shall not be required to deliver Rating Agency confirmations in accordance with the provisions terms and conditions of this Instrument Agreement at any time that rated Securities are not outstanding.
(d) In the event that Lender shall sell all or any portion of the other Loan Documents require or any participation therein as permitted pursuant to Section 9.1(a) above, Borrowers acknowledge and agree that such sale or participation may include some of or the receipt of a Rating Confirmation with respect entire obligation to fund the ratings on Construction Holdback (the Securities or if the terms “Future Funding Obligation”). In furtherance of the transaction documents relating foregoing, Borrowers hereby agree that Lender and/or any such assignee or participant may assign, transfer or sell all or any portion of its Future Funding Obligation and shall thereafter be relieved of such Future Funding Obligation, provided that such assignee at the time of assignment assumes such Future Funding Obligation in writing in a manner directly enforceable by, and reasonably acceptable to, Borrowers and a copy of such assumption is delivered to a Secondary Market Transaction require a Rating Confirmation in order for Borrowers. At such time as Lender has so transferred the consent of entire Future Funding Obligation pursuant to this Section 9.1(d), the named Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmationhereunder shall have no Future Funding Obligation hereunder.
Appears in 2 contracts
Sources: Third Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Third Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Sale of Note and Securitization. At (a) Borrowers acknowledge and agree that, at any time from and after the request Closing Date, Lender may sell all or any portion of the Lender andLoan and the Loan Documents, or require Borrowers to restructure the Loan into multiple notes (which may include component notes and/or senior and junior notes) and/or issue one or more participations therein and/or syndicate the Loan, which restructuring may include the restructuring of a portion of the Loan to one or more of the foregoing or into one or more additional mezzanine loans to the extent not already required to be provided direct and/or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Borrower under this InstrumentLender and Borrowers and that are direct or indirect subsidiaries of HR Holdings, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres secured by a pledge of such interests, or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrowers under this InstrumentAgreement, Borrowers shall use commercially reasonable good faith efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization, including, without limitation, to:
(a) (i) provide such financial and additional and/or updated Provided Information or other information with respect to the Mortgaged PropertyProperties, the Borrower IP, the First Mezzanine Collateral and/or the Collateral reasonably requested or reasonably required by Lender, prospective investors or the Rating Agencies, together with, if customary or if otherwise requested by any Rating Agency, appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and the Property Manager, Rating Agencies;
(ii) perform review descriptive materials for presentations to any or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations all of the Mortgaged PropertyRating Agencies, as may be and work with third-party service providers engaged to obtain, collect, and deliver information reasonably requested or reasonably required by the Lender Lender, prospective investors or the Rating Agencies or Agencies;
(iii) if required by any Rating Agency, (A) deliver updated opinions of counsel as may be necessary or appropriate in connection to non-consolidation, due execution and enforceability with respect to the Secondary Market TransactionProperties, the IP, the Collateral, any Loan Party, HRHI, any Guarantor, any of their respective Affiliates and the Loan Documents, and (iiiB) make amend the Special Purpose Entity provisions of the organizational documents for each Loan Party, which counsel opinions and amendments to the organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such representations additional tenant estoppel letters, subordination agreements and/or other agreements from parties to agreements that affect any of the Properties, the IP or the Collateral, which estoppel letters, subordination agreements and warranties other agreements shall be reasonably satisfactory to Lender and the Rating Agencies;
(v) provide, as of the closing date of the Secondary Market Transaction with respect to the Mortgaged PropertySecuritization, Borrower updated representations and warranties made in the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, to the “Provided Information”), together, if customary, with appropriate verification and/or consents extent they are true as of the Provided Information through letters closing of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesSecuritization;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cvi) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be reasonably requested by the Lender or the Rating Agencies to effect such Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original note, but such new notes or modified note may change the interest rate of the Loan), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transaction; most favorable rating levels and achieve the optimum rating levels for the Loan, provided, however, that the Borrower shall (A) such new notes or modified note will not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note unless the varying interest rates shall have the same initial weighted average coupon of the original Note, (B) such amendments to the Loan Documents or (ii) the new notes or modified note will not modify or amend any other economic or material economic term of the LoanLoan in a manner materially adverse to any Loan Party, HRHI or Guarantors or any of their respective Constituent Members, or (C) such amendments to the Loan Documents will not materially increase any Loan Party’s or Guarantors’ obligations and liabilities under the Loan Documents or materially decrease the rights of Borrowers under the Loan Documents;
(dvii) if requested by Lender, review any information regarding any Property, the IP, the First Mezzanine Collateral, the Collateral, any Loan Party, any Mezzanine Borrower, HRHI, the Gaming Operator, any Manager, the Liquor Manager and/or the Loan which is contained in any preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any affiliate thereof; and
(viii) supply to Lender such documentation, financial statements and reports concerning any Loan Party, any Mezzanine Borrower, HRHI, any Guarantor, the Loan, any Property, the IP, the First Mezzanine Collateral and/or the Collateral in form and substance required in order to comply with any applicable securities laws.
(b) Lender shall pay all reasonable third party costs and expenses (excluding fees and expenses of Borrower’s legal counsel) in excess of Twenty Thousand Dollars ($20,000) incurred by ▇▇▇▇▇▇ Borrowers in connection with ▇▇▇▇▇▇▇▇’s Borrowers’ complying with requests made under this Section; andSection 9.1 and/or under Section 9.2 hereof, provided, however, the fees and expenses of Borrowers’ legal counsel and Borrowers’ administrative costs shall not be included in such amount and Borrowers shall remain at all times responsible for the fees and expenses of their legal counsel and their own administrative costs. In addition to the foregoing, Lender expressly acknowledges and agrees that Borrowers shall not be required to pay any Rating Agency surveillance charges.
(ec) Notwithstanding anything to the contrary contained in this Agreement, in the event of a Securitization that involves a participation or restructuring into one or more additional mezzanine loans, Borrowers shall not be required to deliver Rating Agency confirmations in accordance with the provisions terms and conditions of this Instrument or Agreement at any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the time that rated Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmationare not outstanding.
Appears in 2 contracts
Sources: Second Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Sale of Note and Securitization. At the request of the Lender and, to the extent not already required to be provided by Borrower under this Instrument, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction of rated single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in the Note and this Instrument, including, without limitation, to:
(a) (i) provide such financial and other information with respect to the Mortgaged Property, the Borrower and the Property Manager, (ii) perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and (iii) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Mortgaged Property, Borrower and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(c) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan;
(d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Lender in connection with ▇▇▇▇▇▇▇▇Borrower’s complying with requests made under this Section; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.
Appears in 2 contracts
Sources: Multifamily Mortgage, Assignment of Rents and Security Agreement (NTS Realty Holdings Lp), Multifamily Mortgage, Assignment of Rents and Security Agreement (NTS Realty Holdings Lp)
Sale of Note and Securitization. At the request (a) Borrower acknowledges and agrees that Lender may sell, assign and/or syndicate all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrumentor issue one or more participations therein, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public offerings of rated single single-or multi-class securities (securities sold in any offering, the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (any such securitizations, offering which involves the issuance of Securities, which offering may include a sale, syndication or participation of all or a portion of the Loan, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by or on behalf of Borrower under this InstrumentAgreement, Borrower shall use commercially reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender or take other actions reasonably required by ▇▇▇▇▇▇, in each case in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any sale, syndication, participation or Securitization. Lender shall have the right to provide to prospective investors and the Rating Agencies any information in its possession, including, without limitation, financial statements relating to Borrower, any Master Tenant, Sole Member, Guarantor, the Properties, any Master Lease and any Tenant of the Improvements. Borrower acknowledges that certain information regarding the Loan and the parties thereto, any Master Tenant, Sole Member, Guarantor, the Properties, any Master Lease and any Tenant of the Improvements may be included in the Disclosure Documents. ▇▇▇▇▇▇▇▇ agrees that Borrower, each Master Tenant, Sole Member, Guarantor and their respective officers and representatives, shall, at ▇▇▇▇▇▇’s request, cooperate with ▇▇▇▇▇▇’s efforts to arrange for a sale, syndication, participation or Securitization in accordance with the market standards to which Lender customarily adheres and/or which may be reasonably required by prospective investors and/or required by the Rating Agencies in connection with any such Securitization, including, without limitation, to:
(ai) provide additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and acceptable to the Rating Agencies;
(ii) assist in preparing descriptive materials for, and if requested by ▇▇▇▇▇▇, participate in (including senior management of ▇▇▇▇▇▇▇▇), presentations to or meetings with any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by ▇▇▇▇▇▇▇▇, Guarantor and their respective affiliates to obtain, collect, and deliver information reasonably requested or required by Lender or requested or required by the Rating Agencies;
(iii) deliver (i) provide such financial updated opinions of counsel as to non-consolidation, due execution and other information enforceability with respect to the Mortgaged PropertyProperties, the Borrower Borrower, Sole Member and their respective Affiliates and the Property Manager, Loan Documents and (ii) perform revised organizational documents for Borrower, which counsel opinions and organizational documents shall be reasonably satisfactory to Lender and satisfactory to the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or permit or cause other agreements from parties to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged agreements that affect any Individual Property, as may which estoppel letters, subordination agreements or other agreements shall be reasonably requested by the satisfactory to Lender or and satisfactory to the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and Agencies;
(iiiv) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged PropertyProperties, Borrower Borrower, each Master Tenant, Sole Member, Guarantor and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender ▇▇▇▇▇▇ or requested by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents except to the extent such representations and warranties in the Loan Agreement specifically refer to an earlier date, in which case they shall be true, complete and correct in all material respects as of such earlier date, and in all cases subject to changes in facts and circumstances that did not and do not give rise to a Default or Event of Default under the Loan Documents;
(vi) make upon ▇▇▇▇▇▇’s written request, without limitation, all structural or other changes to the Loan (including delivery of one or more new component notes to replace the original notes or modify the original notes to reflect multiple components of the Loan (including senior and subordinate components and notes, but not mezzanine debt) and such new notes or modified note may have different interest rates and amortization schedules (collectively, the “Provided InformationNote Components”)), togethermodifications to any documents evidencing or securing the Loan, if customary, with appropriate verification and/or consents delivery of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(c) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise reasonably acceptable to effect potential investors and addressing such matters as the Secondary Market TransactionRating Agencies may require or potential investors may reasonably require; provided, however, that in creating such new notes or modified notes, Lender shall not have the right to recast any portion of the Loan as a mezzanine loan (but may bifurcate the Loan into senior and subordinate components), and Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the initial weighted average interest raterate payable under the Note, provided no such reallocation shall modify the aggregate amortization of principal of the Note or the allocation of prepayments set forth in Section 2.4.1 and 2.5.2, (ii) the stated maturity or of the Note, (iii) the aggregate amortization of principal set forth in of the Note, or (iiiv) modify or amend any other material economic term of the Loan;
, or (dv) pay all reasonable third party costs decrease the time periods during which Borrower is permitted to perform its obligations under the Loan Documents. In connection with the foregoing: (1) Borrower covenants and expenses incurred agrees to modify the Cash Management Agreement to reflect the newly created components and notes; (2) any Note Components shall have individual interest rates which, initially, on a weighted average basis, shall equal the Spread; and (3) unless an Event of Default shall have occurred and be continuing, any prepayments following a Casualty or Condemnation, and any prepayments made in accordance with Sections 2.4.1, 2.5.2 and 7.8(c) up to the Earn-Out Cap shall be applied pro rata among each Note and each Note Component with respect to such prepayments up to the Pro Rata Cap (which such amount shall exclude the prepayments made under Section 7.8(c) up to the Earn-Out Cap) and thereafter sequentially among the Note Components starting with the most senior class to the most junior class, which the Borrower acknowledges and agrees may result in “rate creep,” provided, however, that following an Event of Default, such prepayments may be applied among Note Components in such sequence as Lender shall elect in its sole discretion, which the Borrower acknowledges and agrees may result in “rate creep”. Lender shall have the right to deliver written notice to Borrower from time to time (a “Componentization Notice”), specifying that the Note has been subdivided into multiple Note Components in accordance with this sub-clause (vi). The Componentization Notice shall specify the notional balance and an interest rate applicable to each Note Component, subject to the requirements of this sub-clause (vi). A Componentization Notice need not be countersigned by Borrower in order to be effective, but Borrower shall countersign any Componentization Notice that is consistent with this clause (vi) if requested by ▇▇▇▇▇▇ in connection with ▇.
(vii) if requested by ▇▇▇▇▇▇▇▇’s complying with requests made , review any information regarding the Properties, Borrower, each Master Tenant, Sole Member, Guarantor and the Loan which is contained in any Disclosure Documents (including any amendment or supplement to either thereof), including without limitation, the sections entitled “Risk Factors,” “Special Considerations,” “Description of the Mortgages,” “Description of the Mortgage Loan and Mortgaged Properties,” “The Borrower,” “The Master Tenants,” “The Third Party Subleases”, “The Master Leases,” “The Lineage Subtenants”, the “Lineage Subleases”, “Certain Legal Aspects of the Mortgage Loan” and “the Ground Leases” (or sections similarly titled or covering similar subject matters) and shall confirm that the factual statements and representations contained in such sections and such other information in the Disclosure Documents (to the extent such information relates to, or is based on, or includes any information regarding the Properties, Borrower, any Master Tenant, the Lineage Subtenants, Sole Member, Guarantor, and/or the Loan) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under this Sectionwhich they were made, not misleading; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.
Appears in 2 contracts
Sources: Loan Agreement (Lineage, Inc.), Loan Agreement (Lineage, Inc.)
Sale of Note and Securitization. At (a) Borrowers acknowledge and agree that, at any time from and after the request Closing Date, Lender may sell all or any portion of the Lender andLoan and the Loan Documents, or require Borrowers to restructure the Loan into multiple notes (which may include component notes and/or senior and junior notes) and/or issue one or more participations therein and/or syndicate the Loan, which restructuring may include the restructuring of a portion of the Loan to one or more of the foregoing or into one or more additional mezzanine loans to the extent not already required to be provided direct and/or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Borrower under this InstrumentLender and Borrowers and that are direct or indirect subsidiaries of HR Holdings, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres secured by a pledge of such interests, or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrowers under this InstrumentAgreement, Borrowers shall use commercially reasonable good faith efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization, including, without limitation, to:
(a) (i) provide such financial and additional and/or updated Provided Information or other information with respect to the Mortgaged PropertyProperties, the Borrower IP and/or the Collateral reasonably requested or reasonably required by Lender, prospective investors or the Rating Agencies, together with, if customary or if otherwise requested by any Rating Agency, appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and the Property Manager, Rating Agencies;
(ii) perform review descriptive materials for presentations to any or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations all of the Mortgaged PropertyRating Agencies, as may be and work with third-party service providers engaged to obtain, collect, and deliver information reasonably requested or reasonably required by the Lender Lender, prospective investors or the Rating Agencies or Agencies;
(iii) if required by any Rating Agency, (A) deliver updated opinions of counsel as may be necessary or appropriate in connection to non-consolidation, due execution and enforceability with respect to the Secondary Market TransactionProperties, the IP, the Collateral, any Loan Party, HRHI, any Guarantor, any of their respective Affiliates and the Loan Documents, and (iiiB) make amend the Special Purpose Entity provisions of the organizational documents for each Loan Party, which counsel opinions and amendments to the organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such representations additional tenant estoppel letters, subordination agreements and/or other agreements from parties to agreements that affect any of the Properties, the IP or the Collateral, which estoppel letters, subordination agreements and warranties other agreements shall be reasonably satisfactory to Lender and the Rating Agencies;
(v) provide, as of the closing date of the Secondary Market Transaction with respect to the Mortgaged PropertySecuritization, Borrower updated representations and warranties made in the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, to the “Provided Information”), together, if customary, with appropriate verification and/or consents extent they are true as of the Provided Information through letters closing of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesSecuritization;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cvi) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be reasonably requested by the Lender or the Rating Agencies to effect such Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original note, but such new notes or modified note may change the interest rate of the Loan), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transaction; most favorable rating levels and achieve the optimum rating levels for the Loan, provided, however, that the Borrower shall (A) such new notes or modified note will not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note unless the varying interest rates shall have the same initial weighted average coupon of the original Note, (B) such amendments to the Loan Documents or (ii) the new notes or modified note will not modify or amend any other economic or material economic term of the LoanLoan in a manner materially adverse to any Loan Party, HRHI or Guarantors or any of their respective Constituent Members, or (C) such amendments to the Loan Documents will not materially increase any Loan Party’s or Guarantors’ obligations and liabilities under the Loan Documents or materially decrease the rights of Borrowers under the Loan Documents;
(dvii) if requested by Lender, review any information regarding any Property, the IP, the Collateral, any Loan Party, any Mezzanine Borrower, HRHI, the Gaming Operator, any Manager, the Liquor Manager and/or the Loan which is contained in any preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any affiliate thereof; and
(viii) supply to Lender such documentation, financial statements and reports concerning any Loan Party, any Mezzanine Borrower, HRHI, any Guarantor, the Loan, any Property, the IP and/or the Collateral in form and substance required in order to comply with any applicable securities laws.
(b) Lender shall pay all reasonable third party costs and expenses (excluding fees and expenses of Borrower’s legal counsel) in excess of Twenty Thousand Dollars ($20,000) incurred by ▇▇▇▇▇▇ Borrowers in connection with ▇▇▇▇▇▇▇▇’s Borrowers’ complying with requests made under this Section; andSection 9.1 and/or under Section 9.2 hereof, provided, however, the fees and expenses of Borrowers’ legal counsel and Borrowers’ administrative costs shall not be included in such amount and Borrowers shall remain at all times responsible for the fees and expenses of their legal counsel and their own administrative costs. In addition to the foregoing, Lender expressly acknowledges and agrees that Borrowers shall not be required to pay any Rating Agency surveillance charges.
(ec) Notwithstanding anything to the contrary contained in this Agreement, in the event of a Securitization that involves a participation or restructuring into one or more additional mezzanine loans, Borrowers shall not be required to deliver Rating Agency confirmations in accordance with the provisions terms and conditions of this Instrument or Agreement at any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the time that rated Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmationare not outstanding.
Appears in 2 contracts
Sources: First Mezzanine Loan Agreement (Hard Rock Hotel Holdings, LLC), First Mezzanine Loan Agreement (Morgans Hotel Group Co.)
Sale of Note and Securitization. At the request Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrumentor issue one or more participations therein, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by or on behalf of Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender or take other actions reasonably required by Lender, in each case in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization including, without limitation, to:
(a) (i) provide such financial and other information with respect to the Mortgaged Property, the Borrower and the Property Manager, (ii) perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and (iii) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Mortgaged Property, Borrower and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “additional and/or updated Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;
(b) at Borrowerassist in preparing descriptive materials for presentations to any or all of Lender’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale prospective investors or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(c) if required by any prospective investor and/or any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or other agreements from parties to agreements that affect the Property, which estoppel letters, subordination agreements or other agreements shall be reasonably satisfactory to Lender, prospective investors and/or the Rating Agencies;
(d) execute such certifications and/or amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by Lender, prospective investors and/or the Rating Agencies or otherwise to effect the Secondary Market Transaction; providedSecuritization, however, provided that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) initially change the weighted average interest raterate on the Loan, the stated maturity or the amortization of principal set forth herein or in the Note, or (ii) modify or amend any other material economic term of the Loan, or (iii) materially increase the obligations, or decrease the rights, of Borrower under the Loan Documents;
(de) pay all reasonable third party costs if requested by Lender, review any information regarding the Property, Borrower, Guarantor, Manager and expenses incurred the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this SectionLender or any affiliate thereof; and
(ef) supply to Lender such documentation, financial statements and reports regarding the Property, Borrower, Guarantor, Manager and the Loan in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation form and substance required in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection comply with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmationapplicable securities laws.
Appears in 1 contract
Sale of Note and Securitization. At the request (a) Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrument, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales and/or securitizations, collectively, a “Securitization”).
(a) In connection with a Securitization or Participation, at the request of Lender, and to the extent not already required to be provided by or on behalf of Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender or take other actions reasonably required by Lender, in each case in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization or Participation (but in no event shall such cooperation result in any increase in any obligations of Borrower or rights of Lender or decrease in any rights of Borrower or obligations of Lender under the Loan Documents or a change in any of the economic or monetary provisions of the Loan or the Loan Documents or result in any “rate creep” under the Loan Documents prior to any Event of Default). Lender shall have the right to provide to prospective investors and the Rating Agencies any information in its possession, including, without limitation, financial statements relating to Borrower, Guarantor, if any, the Properties and any Tenant of the Improvements. Borrower acknowledges that certain information regarding the Loan and the parties thereto and the Properties may be included in a private placement memorandum, prospectus or other disclosure documents. Borrower agrees that Borrower, Guarantor and their respective officers and representatives, shall, at Lender’s request, at Lender’s sole cost and expense subject to Section 9.1.2 hereof, cooperate with Lender’s efforts to arrange for a Securitization or Participation in accordance with the market standards to which Lender customarily adheres and/or which may be required by prospective investors and/or the Rating Agencies in connection with any such Securitization or Participation (as applicable), including, without limitation, to:
(a) (i) provide such financial additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and other the Rating Agencies;
(ii) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrower, and their respective Affiliates to obtain, collect, and deliver information requested or required by Lender or the Rating Agencies;
(iii) deliver (x) updated opinions of counsel as to non-consolidation, due execution and enforceability with respect to the Mortgaged PropertyProperties, the Borrower and their respective Affiliates and the Property Manager, (ii) perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionLoan Documents, and (iiiy) revised organizational documents for Borrower, which counsel opinions and organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or other agreements from parties to agreements that affect the Properties, which estoppel letters, subordination agreements or other agreements shall be reasonably satisfactory to Lender and the Rating Agencies;
(v) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged PropertyProperties, Borrower and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents Documents;
(collectivelyvi) make upon Lender’s written request, without limitation, all structural or other changes to the “Provided Information”Loan (including delivery of one or more new component notes to replace the original notes or modify the original notes to reflect multiple components of the Loan and such new notes or modified notes may have different interest rates and amortization schedules), togethermodifications to any documents evidencing or securing the Loan, if customarycreation of one or more mezzanine loans (including amending Borrower’s organizational structure to provide for one or more mezzanine borrowers), with appropriate verification and/or consents delivery of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(c) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise potential investors and addressing such matters as Borrower previously provided to effect Lender on the Secondary Market TransactionClosing Date; provided, however, that the in creating such new notes or modified notes or mezzanine notes Borrower shall not be required to modify (A) the initial weighted average interest rate payable under the Notes or amend take any Loan Document if such modification or amendment other action which would result in “rate creep” prior to any Event of Default, (iB) change the interest rate, the stated maturity or of the amortization Notes, (C) the provisions related to pro rata payment between the Loan and any mezzanine loans and among the notes for each such loan prior to an Event of Default, (D) the aggregate principal set forth in of the NoteNotes, or (iiE) modify or amend any other material economic term of the Loan, (F) decrease the time periods during which Borrower is permitted to perform its obligations under the Loan Documents, or (G) increase the obligations or decrease the rights of Borrower pursuant to the Loan Documents or increase the rights or reduce the obligations of Lender, nor shall -116- Borrower (subject to Section 9.1.3 hereof) be required to modify its organizational structure or make any other modification, if such modification would cause it or any of its Affiliates or direct or indirect owners to incur any additional tax liability. In connection with the foregoing, Borrower covenants and agrees to modify the Cash Management Agreement to reflect the newly created components and/or mezzanine loans;
(dvii) pay all reasonable third party costs and expenses incurred if requested by ▇▇▇▇▇▇ Lender, to divide the Properties into two (2) or more separate pools, each securing separate notes/loans which may or may not be cross-defaulted and/or cross collateralized, provided that in connection with ▇▇▇▇▇▇▇▇’s complying with requests made creating such separate notes Borrower shall not be required to agree to any changes that would modify the initial weighted average interest rate payable under this Sectionthe Notes, result in “rate creep” prior to any Event of Default or increase any obligations of Borrower or rights to Lender or decrease any obligations of Lender or rights of Borrower; and
(eviii) if requested by Lender, review any information regarding the Properties, Borrower, Guarantor, Manager and the Loan which is contained in any Disclosure Documents (including any amendment or supplement to either thereof), including without limitation, the sections entitled “Risk Factors”, “Special Considerations”, “Description of the Mortgage”, “Description of the Mortgage Loan and Mortgaged Property”, “The Manager”, “The Borrower”, and “Certain Legal Aspects of the Mortgage Loan” (or sections similarly titled or covering similar subject matters) and shall confirm that the factual statements and representations contained in such sections and such other information in the event that Disclosure Documents (to the provisions extent such information relates to, or is based on, or includes any information regarding the Properties, Borrower, Guarantor, Manager and/or the Loan) do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading.
(b) Lender or an agent appointed by it, in either case acting solely for this purpose as an agent of Borrower, shall maintain a register for the recordation of the names and addresses of each Lender, and the principal amounts (and stated interest) of the Loan owing to each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and Borrower and each Lender shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Instrument or Agreement. The Register shall be available for inspection by Borrower and any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer at any reasonable time and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition from time to the delivery of the Rating Confirmationtime upon reasonable prior notice.
Appears in 1 contract
Sale of Note and Securitization. At the request Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrumentor issue one or more participations therein, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization including, without limitation, to:
(a) provide additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and the Rating Agencies;
(b) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrower and its Affiliates to obtain, collect, and deliver information requested or required by Lender or the Rating Agencies;
(c) deliver (i) provide such financial updated opinions of counsel as to non-consolidation, due execution and other information enforceability with respect to the Mortgaged Property, the Borrower and its Affiliates and the Property ManagerLoan Documents, including, without limitation, a so-called “10b-5” opinion and (ii) perform revised organizational documents for Borrower, which counsel opinions and organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(d) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or permit or cause other agreements from parties to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of agreements that affect the Mortgaged Property, as may which estoppel letters, subordination agreements or other agreements shall be reasonably requested by the satisfactory to Lender or and the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and Agencies;
(iiie) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged Property, Borrower and its Affiliates and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesDocuments;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cf) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be reasonably requested by the Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original note, but such new notes or modified note may change the interest rate and amortization of the Loan), and modify the cash management provisions contained in Section 2.6 of this Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies shall provide the most favorable rating levels and achieve the optimum rating levels for the Loan; provided that nothing contained in this Section 9.1(f) shall result in any economic or otherwise other material adverse change in the transaction contemplated by this Agreement or the other Loan Documents (unless Borrower is made whole by the holder of the Notes) or result in any operational changes that are unduly burdensome to effect the Secondary Market Transaction; providedCollateral or any Borrower Party. Notwithstanding anything to the contrary contained herein, however, that the Borrower shall not be required to modify or amend any Loan Document or organizational document of any Borrower Party in a manner that would materially increase such Borrower Party’s obligations or have any materially adverse effect whatsoever on Borrower.
(g) if such modification requested by Lender, review any information regarding the Property, Borrower, Principal, Manager and the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Notesupplement to either thereof), or (ii) modify other disclosure document to be used by Lender or amend any other material economic term of the Loan;affiliate thereof; and
(dh) pay all supply to Lender such documentation, financial statements and reports in form and substance required in order to comply with any applicable securities laws. All reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Borrower, Guarantor or any Affiliate thereof in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this Section; and
Section 9.1.1 (e) in including, without limitation, the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs fees and expenses of the Rating Agencies) shall be paid by Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.
Appears in 1 contract
Sources: Loan Agreement (Bh Re LLC)
Sale of Note and Securitization. At Borrower acknowledges and agrees that the request Lender may sell all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrumentor issue one or more participations therein, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use commercially reasonable good faith efforts to provide existing information not in the possession of Lender or which may be reasonably required by Lender (excluding any confidential information concerning Marriott Manager as required by the terms of the Management Agreement or Sponsor’s Constituent Members) in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization including, without limitation, to:
(a) (i) provide such financial and updated Provided Information or other existing information with respect to the Mortgaged Property, together with appropriate verification and/or consents related to the Borrower Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and the Property Manager, Rating Agencies;
(iib) perform review descriptive materials for presentations to any or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations all of the Mortgaged PropertyRating Agencies, as may be and work with, third-party service providers engaged to obtain, collect, and deliver information reasonably requested or reasonably required by the Lender Lender, prospective investors or the Rating Agencies or Agencies;
(c) if required by any Rating Agency, deliver (i) updated opinions of counsel as may be necessary or appropriate in connection with the Secondary Market Transactionto non-consolidation, due execution and (iii) make such representations and warranties as of the closing date of the Secondary Market Transaction enforceability with respect to the Mortgaged Property, Borrower Borrower, the Principal and the Loan Documents, and (ii) amend the Special Purpose Entity provisions of the organizational documents for Borrower, which counsel opinions and amendments to the organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(d) provide updated representations and warranties made in the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, to the “Provided Information”), together, if customary, with appropriate verification and/or consents extent they are true as of the Provided Information through letters closing of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesSecuritization;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(ce) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be reasonably requested by the Lender or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original note, but such new notes or modified note may change the interest rate of the Loan), provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) such new notes or modified note will not change the interest rate, the stated maturity or the amortization of principal set forth in the Note unless the varying interest rates shall have the same initial weighted average coupon of the original Note, or (ii) such amendments to the Loan Documents or the new notes or modified note will not modify or amend any other economic or material economic term of the LoanLoan in a manner adverse to Borrower its Constituent Members, or (iii) such amendments to the Loan Documents will not materially increase Borrower’s obligations and liabilities under the Loan Documents or materially decrease the rights of Borrower under the Loan Documents;
(df) if requested by Lender, review any information regarding the Property, Borrower, Principal, the Manager and the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any affiliate thereof; and
(g) supply to Lender such existing documentation, financial statements and reports of Borrower in form and substance required in order to comply with any applicable securities laws. Lender shall pay all reasonable third party costs and expenses (excluding fees and expenses of Borrower’s legal counsel) in excess of Five Thousand Dollars ($5,000) incurred by ▇▇▇▇▇▇ Borrower in connection with ▇▇▇▇▇▇▇▇Borrower’s complying with requests made under this Section; and
(e) in Section 9.1 and/or under Section 9.1.2 hereof, provided, however, the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs fees and expenses of Borrower’s legal counsel and Borrower’s administrative costs shall not be included in such amount and Borrower shall remain at all times responsible for the Lender, Loan Servicer fees and each expenses of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmationits legal counsel and its own administrative costs.
Appears in 1 contract
Sale of Note and Securitization. At the request of the Lender holder of the Note and, to the extent not already required to be provided by Borrower an Obligor under this InstrumentAgreement or the other Loan Documents, Borrower shall each Obligor shall, subject to the terms and provisions of this Section 12.08, use reasonable efforts to satisfy the market standards to which the Lender holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with a Securitization, including using reasonable efforts to do (or cause to be done) the following (but Obligors will not in any Secondary Market Transaction event be required pursuant to any of rated single the provisions of this Section 12.08 to incur, suffer or multi-class securities accept (the “Securities”except to a de minimis extent) secured by (i) any lesser rights or evidencing ownership interests greater obligations as are currently set forth in the Note and Loan Documents or an Obligor's organizational documents (unless Borrower is made whole by the holder of the Note), or (ii) except as expressly set forth in this InstrumentSection 12.08, including, without limitation, toany expense:
(a) (i) provide such financial and other information as may be reasonably requested, subject to the terms and provisions hereof, with respect to the Mortgaged Individual Property, Borrower, Subsidiary Guarantors and their Subsidiaries and affiliates, and, to the Borrower extent in the possession of an Obligor and the Property Managernot subject to confidentiality restrictions, any tenants of any Individual Property, (ii) provide business plans and budgets relating to the Individual Property (and to the extent such information is readily available to Borrower, the same shall be provided without cost to Lender) and (iii) to perform or permit or cause to be performed or permitted or allow Lender to perform such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s 's and, if appropriate, Phase II’s's), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and Securitization (iii) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Mortgaged Property, Borrower and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “"Provided Information”"), together, if customary, with appropriate verification and/or consents of the Provided Information to the extent reasonably obtainable, through letters of auditors auditors, engineers or appraisers or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;counsel; and
(b) at Borrower’s expense, cause its independent counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, opinions as to nonconsolidation, fraudulent conveyance, and true sale conveyance or any other opinion customary in securitization transactions with respect to the Mortgaged Property Individual Property, and Borrower Borrower, and its Affiliatesaffiliates (but not a true sale or 10b-5 opinion), 105 112 including, without limitation, a nonconsolidation opinion and/or insolvency option acceptable to Lender and all applicable rating agencies, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(c) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise and which shall be addressed to effect such Persons as shall be reasonably designated by the Secondary Market Transaction; provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization holder of principal set forth in the Note, or . Any Obligor's failure to deliver the opinions required hereby within such ten (ii10) modify or amend any other material economic term Business Days after written request therefor shall constitute an "Event of the Loan;
(d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this Section; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating ConfirmationDefault" hereunder.
Appears in 1 contract
Sale of Note and Securitization. At the request (a) Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrumentor issue one or more participations therein, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization including, without limitation, to:
(a) (i) provide such financial or cause Mortgage Borrower to provide additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and other the Rating Agencies;
(ii) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrower, Principal and their respective affiliates to obtain, collect, and deliver information requested or required by Lender or the Rating Agencies;
(iii) deliver (A) updated opinions of counsel as to non-consolidation, due execution and enforceability with respect to the Mortgaged Property, the Borrower Mortgage Borrower, Borrower, Principal, Guarantor and their respective Affiliates and the Property Manager, (ii) perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionLoan Documents, and (iiiB) revised organizational documents for Borrower, which counsel opinions and organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or other agreements from parties to agreements that affect the Property, which estoppel letters, subordination agreements or other agreements shall be reasonably satisfactory to Lender and the Rating Agencies;
(v) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged PropertyCollateral, Borrower Borrower, Principal, Guarantor, Mortgage Borrower, the Property and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesDocuments;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cvi) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original Note or modify the original Note, this Agreement and the other Loan Documents to reflect multiple components of the Loan (and such new notes or modified Note shall have the same initial weighted average coupon of the original Note and provide for the same total amortization payments, but each such new notes or modified Note may have different interest rates and provide for varying amortization payments), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transactionmost favorable rating levels and achieve the optimum rating levels for the Loan; provided, however, that the Borrower shall not be required to modify or amend any of the Loan Document Documents if such modification or amendment would would
(i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, have a material adverse economic effect on Borrower or (ii) modify or amend the Loan term, amortization or any other material economic term of the LoanLoan or otherwise materially adversely increase the obligations or materially decrease the rights of Borrower under the Loan Documents, including, without limitation, modifying the transfer, recourse, prepayment, events of default, or remedy provisions, or the organizational documents of Borrower or its Affiliates;
(dvii) pay all if requested by Lender, review any information regarding the Property, Borrower, Principal, Guarantor, Manager, Mortgage Borrower, the Collateral and the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any affiliate thereof; and
(viii) supply to Lender such documentation, financial statements and reports as may be in the possession or control of Borrower or its Affiliates in form and substance required in order to comply with any applicable securities laws.
(b) All reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Borrower in connection with ▇▇▇▇▇▇▇▇’s Borrower complying with requests made under this Section; and
Section 9.1 (e) in including, without limitation, the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs fees and expenses of the LenderRating Agencies) shall be paid by Borrower, Loan Servicer except that Lender shall reimburse Borrower for all such costs and each expenses in excess of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation$25,000.00.
Appears in 1 contract
Sale of Note and Securitization. At the request of the Lender holder of the Note and, to the extent not already required to be provided by Borrower Mortgagor under this InstrumentMortgage, Borrower Mortgagor shall use reasonable efforts to satisfy the market standards to which the Lender holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction the sale of the Note or participation therein or the first successful securitization (such sale and/or securitization, the "Securitization") of rated single or multi-class securities (the “"Securities”") secured by or evidencing ownership interests in the Note and this Instrumentthe Mortgage, including, without limitation, to:
(a) (i) at Mortgagee's expense, provide such financial and other information with respect to the Mortgaged PropertyProperties, Mortgagor and its Affiliates, the Borrower Manager and any Tenants of the Property Manager99 105 Properties, (ii) provide business plans and budgets relating to the Properties and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase phase I’s 's and, if appropriate, Phase phase II’s's), engineering reports and other due diligence investigations of the Mortgaged PropertyProperties, as may be reasonably requested by the Lender holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and Securitization (iii) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Mortgaged Property, Borrower and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “"Provided Information”"), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender Mortgagee and to the Rating Agencies;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, opinions as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property Properties and Borrower Mortgagor and its Affiliates, including, without limitation, a Bankruptcy Opinion, to be provided at Mortgagee's expense, and a 10b-5 Opinion, to be provided at the request of Mortgagee, which counsel and opinions shall be reasonably satisfactory to the Lender holder of the Note and to the Rating Agencies;
; for the purposes hereof, (ci) execute such amendments "Bankruptcy Opinion" shall mean an opinion to the Loan Documents effect that if the Mortgagor or the general partner of the Mortgagor were a debtor under the U.S. Bankruptcy Code, a court would not have valid legal grounds to cause the Mortgagor to be substantively consolidated with any other Person and organizational documents(ii) the "10b-5 Opinion" shall mean an opinion or other written assurance of counsel acceptable to Mortgagee and its counsel regarding the absence of any misstatement of a material fact, establish and fund or the Replacement Reserve Fund (as defined omission to state a material fact in any materials, other than financial information with respect to the Replacement Reserve Agreement)Properties or the Loan, if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested provided by the Lender or by Mortgagor to the Rating Agencies or otherwise Mortgagee in connection with the origination of the Loan, including without limitation information with respect to effect the Secondary Market Transaction; Mortgage, the Mortgaged Property, the Manager, the Mortgagor and other legal aspects of the Mortgage Loan. The 10b-5 Opinion shall be delivered at Mortgagee's expense, provided, however, that the Borrower Mortgagor shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan;
(d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this Section; and
the 10b-5 Opinion exceeding $20,000. Mortgagor's failure to deliver the opinions required hereby within ten (e10) in the event that the provisions Business Days shall constitute an "Event of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.Default" hereunder;
Appears in 1 contract
Sale of Note and Securitization. Lender shall have the right to dispose of the Loan, the Note, and the Loan Documents, whether in connection with a Secondary Market Transaction or otherwise, with no requirement of consent from the Borrower. At the request of the Lender holder of the Note and, to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction the sale of the Note or participation therein or the first successful securitization (such sale and/or securitization, the "Securitization") of rated single or multi-class securities (the “"Securities”") secured by or evidencing ownership interests in the Note and this Instrumentthe Mortgages, including, without limitation, to:
(a) (i) provide such financial and other information with respect to the Mortgaged Property, the Borrower and its affiliates, the Property ManagerManager and any tenants of the Property, (ii) provide business plans and budgets relating to the Property and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s 's and, if appropriate, Phase II’s's), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionSecuritization (the "Provided Information"), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies;
(b) at Lender's expense, cause counsel to render opinions in form customary for securitization transactions as to non-consolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Property and Borrower and its affiliates, which counsel and opinions shall be reasonably satisfactory to the holder of the Note and the Rating Agencies; (iiic) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged Property, Borrower Borrower, and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender holder of the Note or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(c) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan;
(d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this SectionDocuments; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.
Appears in 1 contract
Sale of Note and Securitization. The provisions of this ------------------------------- Section 55
(a) are subject to the limitation that the Grantor shall not be ------------- required to incur any additional payment obligations or out-of-pocket expenses except that the 10
(b) 5 opinion required to be delivered pursuant hereto shall be delivered at Grantor's sole cost and expense. At the request of the Lender holder of the Note and, to the extent not already required to be provided by Borrower Grantor under this InstrumentMortgage, Borrower Grantor shall use reasonable efforts to satisfy the market standards to which the Lender holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction the sale of the Note or participation therein or the first successful securitization (such sale and/or securitization, the "Securitization") of rated -------------- single or multi-class securities (the “"Securities”") secured by or evidencing ---------- ownership interests in the Note and this Instrumentthe Mortgage, including, without limitation, to:
(aA) (i) provide such financial and other information with respect to the Mortgaged PropertyProperties, Grantor and its affiliates, the Borrower Manager and any Tenants of the Property ManagerProperties, (ii) provide business plans and budgets relating to the Properties and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s 's and, if appropriate, Phase II’s's), engineering reports and other due diligence investigations of the Mortgaged PropertyProperties, as may be reasonably requested by the Lender holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionSecuritization (the "Provided -------- Information"), together, if customary, with appropriate verification and/or ----------- consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Beneficiary and the Rating Agencies, as well as a 10(b)5 opinion from Grantor's counsel with respect to the description of the Loan Documents and the Properties set forth in any prospectus or offering memorandum prepared in connection with the Securitization provided that the Securitization shall close on or before the second anniversary of the Closing hereof;
(iiiB) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged PropertyProperties, Borrower Grantor, and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender holder of the Note or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;Documents; and
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cC) execute such amendments to the Loan Documents and Grantor's organizational documents, and establish and fund the Replacement Reserve Fund such reserve funds (as defined in the Replacement Reserve Agreement), if any, including reserve funds for deferred maintenance and any Repairs (as defined in the Repair Agreement), if any, capital improvements) as may be requested by the Lender holder of the Note or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; Securitization, provided, however, that the Borrower nothing contained in this subsection (D) shall not be required to modify or amend any Loan Document if such modification or amendment would (i) result in a material economic change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan;
(d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this Section; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmationtransaction.
Appears in 1 contract
Sale of Note and Securitization. At the request of the Lender holder of the Note and, to the extent not already required to be provided by Borrower under this Instrument, Agreement. Borrower shall use reasonable efforts to satisfy the market standards to which the Lender holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction the sale of the Note or participation therein or the first successful securitization (such sale and/or securitization, the "Securitization") of rated single or multi-class securities (the “"Securities”") secured by or evidencing ownership interests in the Note and this Instrumentthe Mortgages, including, without limitation, to:
(a) (i1) provide such financial and other information with respect to the Mortgaged PropertyProperties, the Borrower and its affiliates, Manager and any tenants of the Property ManagerProperties, (ii) provide business plans and budgets relating to the Properties and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s 's and, if appropriate, Phase II’s's), engineering reports and other due diligence investigations of the Mortgaged PropertyProperties, as may be reasonably requested by the Lender holder of the Note or the Rating Agencies or as may be reasonably necessary or appropriate in connection with the Secondary Market TransactionSecuritization (the "Provided Information"), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies;
(b) at Borrower's expense, cause counsel to render opinions as to non-consolidation, fraudulent conveyance, and true sale, true contribution or any other opinion customary in securitization transactions with respect to the Properties and Borrower and its affiliates, which counsel and opinions shall be reasonably satisfactory to the holder of the Note and the Rating Agencies;
(iiic) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged PropertyProperties, Borrower Borrower, and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender holder of the Note or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;Documents; and
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cd) execute such amendments to the Loan Documents and Borrower's organizational documents, enter into a lock-box or similar arrangement with respect to the Rents and establish and fund the Replacement Reserve Fund such reserve funds (as defined in the Replacement Reserve Agreement), if any, including reserve funds for deferred maintenance and any Repairs (as defined in the Repair Agreement), if any, capital improvements) as may be requested by the Lender holder of the Note or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; Securitization, provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth nothing contained in the Note, or (ii) modify or amend any other material economic term of the Loan;
this subsection (d) pay shall result in a material change in the transaction. In connection with only the initial Securitization, all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Lender in connection with ▇▇▇▇▇▇▇▇’s Borrower's complying with requests made under this Section; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of Section 9.1 shall be paid by Borrower up to a Rating Confirmation maximum amount equal to $147,000, which Borrower will deposit with respect to the ratings Lender on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating ConfirmationClosing Date.
Appears in 1 contract
Sale of Note and Securitization. At the request of the Lender holder of the Note and, to the extent not already required to be provided by Borrower an Obligor under this InstrumentAgreement or the other Loan Documents, Borrower shall each Obligor shall, subject to the terms and provisions of this Section 12.08, use reasonable efforts to satisfy the market standards to which the Lender holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with a Securitization, including using reasonable efforts to do (or cause to be done) the following (but Obligors will not in any Secondary Market Transaction event be required pursuant to any of rated single the provisions of this Section 12.08 to incur, suffer or multi-class securities accept (the “Securities”except to a de minimis extent)
(i) secured by any lesser rights or evidencing ownership interests greater obligations as are currently set forth in the Note and Loan Documents or an Obligor's organizational documents (unless Borrower is made whole by the holder of the Note), or (ii) except as expressly set forth in this InstrumentSection 12.08, including, without limitation, toany expense:
(a) (i) provide such financial and other information as may be reasonably requested, subject to the terms and provisions hereof, with respect to the Mortgaged Individual Property, Borrower, Subsidiary Guarantors and their Subsidiaries and affiliates, and, to the Borrower extent in the possession of an Obligor and the Property Managernot subject to confidentiality restrictions, any tenants of any Individual Property, (ii) provide business plans and budgets relating to the Individual Property (and to the extent such information is readily available to 109 Borrower, the same shall be provided without cost to Lender) and (iii) to perform or permit or cause to be performed or permitted or allow Lender to perform such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s 's and, if appropriate, Phase II’s's), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and Securitization (iii) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Mortgaged Property, Borrower and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “"Provided Information”"), together, if customary, with appropriate verification and/or consents of the Provided Information to the extent reasonably obtainable, through letters of auditors auditors, engineers or appraisers or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;counsel; and
(b) at Borrower’s expense, cause its independent counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, opinions as to nonconsolidation, fraudulent conveyance, and true sale conveyance or any other opinion customary in securitization transactions with respect to the Mortgaged Property Individual Property, and Borrower Borrower, and its Affiliatesaffiliates (but not a true sale or 10b-5 opinion), including, without limitation, a nonconsolidation opinion and/or insolvency option acceptable to Lender and all applicable rating agencies, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(c) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise and which shall be addressed to effect such Persons as shall be reasonably designated by the Secondary Market Transaction; provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization holder of principal set forth in the Note, or . Any Obligor's failure to deliver the opinions required hereby within such ten (ii10) modify or amend any other material economic term Business Days after written request therefor shall constitute an "Event of the Loan;
(d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this Section; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating ConfirmationDefault" hereunder.
Appears in 1 contract
Sale of Note and Securitization. At the request (a) Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, or require Borrower to restructure the Loan into multiple notes (which may include component notes and/or senior and junior notes) (“Multiple Notes”) and/or issue one or more participations therein, which restructuring may include reallocation of principal amounts of the Loan or the restructuring of a portion of the loan into a mezzanine loan to the extent not already required to be provided owners of the equity interests in Borrower, secured by Borrower under this Instrumenta pledge of such interests, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public -77- securitizations of rated single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”), provided that (i) the weighted average interest rate of the Loan and the Mezzanine Loan following any such reallocation or modification shall not be changed from the weighted average interest rate in effect immediately preceding such reallocation or modification, (ii) the principal balances of each of the Loan and the Mezzanine Loan following any such reallocation or modification shall equal the amount of the Outstanding Principal Balance of the Loan immediately prior to such reallocation or modification, and (iii) any other material term set forth in this InstrumentAgreement or the other Loan Documents shall not be adversely affected. At the request of Lender, includingand to the extent not already required to be provided by Borrower under this Agreement, without limitationBorrower shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization, including to:
(a) (i) provide such financial additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and other the Rating Agencies;
(ii) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrower, Guarantor and their respective Affiliates to obtain, collect, and deliver information requested or required by Lender or the Rating Agencies;
(iii) deliver (A) updated opinions of counsel as to non-consolidation, due execution and enforceability with respect to the Mortgaged Property, the Borrower Borrower, Guarantor and their respective Affiliates and the Property Manager, (ii) perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionLoan Documents, and (iiiB) revised organizational documents for Borrower, which counsel opinions and organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or other agreements from parties to agreements that affect the Property, which estoppel letters, subordination agreements or other agreements shall be reasonably satisfactory to Lender and the Rating Agencies;
(v) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged Property, Borrower Borrower, Guarantor and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesDocuments;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cvi) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original Note or modify the original Note, this Agreement and the other Loan Documents to reflect multiple components of the Loan (and such new notes or modified Note shall have the same initial weighted average coupon of the original Note and provide for the same total amortization payments, but each such new note or modified Note may have different interest rates and provide for varying amortization payments), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transactionmost favorable rating levels and achieve the optimum rating levels for the Loan; provided, however, that the Borrower shall not be required to modify or amend any of the Loan Document Documents if such modification or amendment would (iA) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, have a material adverse economic effect on Borrower or (iiB) modify or amend the Loan term, weighted average interest rate, amortization or any other material economic term of the LoanLoan or otherwise materially adversely increase the obligations or materially decrease the rights of Borrower under the Loan Documents, including modifying the transfer, recourse, prepayment, events of default, or remedy provisions, or the organizational documents of Borrower or its Affiliates;
(vii) if requested by Lender, review any information regarding the Property, Borrower, Guarantor, Manager and the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any Affiliate thereof; and
(viii) supply to Lender such documentation, financial statements and reports as may be in the possession or control of Borrower or its Affiliates in form and substance required in order to comply with any applicable securities laws.
(b) Borrower shall not be obligated to pay any costs or expenses incurred Guarantor in connection with Borrower complying with requests made under clause (a) of this Section 9.1, provided that Borrower shall be responsible for its own legal fees and other associated expenses.
(c) Notwithstanding the provisions of Section 9.1(a) hereof to the contrary, and without limiting the provisions of Section 9.7.1 and/or 9.7.2 hereof, Borrower covenants and agrees that after the Closing Date and prior to a Securitization, Lender shall have the right to establish different interest rates and to reallocate the amortization and principal balances of each of the Loan and the Mezzanine Loan between each other and to require the payment of the Loan and the Mezzanine Loan in such order of priority as may be designated by Lender; provided, however, that (i) the weighted average interest rate of the Loan and the Mezzanine Loan following any such reallocation or modification shall not be changed from the weighted average interest rate in effect immediately preceding such reallocation or modification, (ii) the aggregate principal balance of the Loan and the Mezzanine Loan following any such reallocation or modification shall equal the aggregate principal balance of the Loan and the Mezzanine Loan immediately prior to such reallocation or modification, and (iii) Borrower’s rights and obligations any other material term of the Loan Agreement or the other Loan Documents shall not be materially adversely affected.
(d) pay In connection with a Securitization or other sale of all or a portion of the Loan, Lender shall have the right to modify all operative dates (including payment dates, interest period start dates and end dates, etc) under the Loan Documents, by up to ten (10) days (such action and all related action is a “Re-Dating”). Borrower shall cooperate with Lender to implement any Re-Dating. If Borrower fails to cooperate with Lender within ten (10) Business Days of written request by Lender, Lender is hereby appointed as Borrower’s attorney-in-fact, coupled with an interest, to execute any and all documents necessary to accomplish the Re-Dating.
(e) All reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Borrower, Guarantor or Lender in connection with ▇▇▇▇▇▇▇▇’s Borrower complying with requests made under this Section; and
clauses (ec) in the event that the provisions and (d) of this Instrument or any of Section 9.1 (including the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs fees and expenses of the Rating Agencies) shall be paid by Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.
Appears in 1 contract
Sale of Note and Securitization. At the request of the Lender holder of the Note and, to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction the sale of the Note or participation therein or the first successful securitization (such sale and/or securitization, the "Securitization") of rated single or multi-class securities (the “"Securities”") secured by or evidencing ownership interests in the Note and this Instrumentthe Mortgages, including, without limitation, to:
(a) (i) provide such financial and other information with respect to the Mortgaged PropertyProperties, the Borrower and its affiliates, Manager and any tenants of the Property ManagerProperties, (ii) provide business plans and budgets relating to the Properties and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s 's and, if appropriate, Phase II’s's), engineering reports and other due diligence investigations of the Mortgaged PropertyProperties, as may be reasonably requested by the Lender holder of the Note or the Rating Agencies or as may be reasonably necessary or appropriate in connection with the Secondary Market TransactionSecuritization (the "Provided Information"), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies;
(b) at Borrower's expense, cause counsel to render opinions as to non-consolidation, fraudulent conveyance, and true sale, true contribution or any other opinion customary in securitization transactions with respect to the Properties and Borrower and its affiliates, which counsel and opinions shall be reasonably satisfactory to the holder of the Note and the Rating Agencies;
(iiic) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged PropertyProperties, Borrower Borrower, and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender holder of the Note or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;Documents; and
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cd) execute such amendments to the Loan Documents and Borrower's organizational documents, enter into a lock-box or similar arrangement with respect to the Rents and establish and fund the Replacement Reserve Fund such reserve funds (as defined in the Replacement Reserve Agreement), if any, including reserve funds for deferred maintenance and any Repairs (as defined in the Repair Agreement), if any, capital improvements) as may be requested by the Lender holder of the Note or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; Securitization, provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth nothing contained in the Note, or (ii) modify or amend any other material economic term of the Loan;
this subsection (d) pay shall result in a material change in the transaction. In connection with only the initial Securitization, all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Lender in connection with ▇▇▇▇▇▇▇▇’s Borrower's complying with requests made under this Section; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of Section 9.1 shall be paid by Borrower up to a Rating Confirmation maximum amount equal to $147,000, which Borrower will deposit with respect to the ratings Lender on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating ConfirmationClosing Date.
Appears in 1 contract
Sale of Note and Securitization. At the request Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, or, subject to the extent not already required limitations set forth in Section 9.1(f) and elsewhere herein, require Borrower to be provided by Borrower under this Instrument, Borrower shall use reasonable efforts to satisfy restructure the market standards to which the Lender customarily adheres or Loan into additional multiple notes (which may be reasonably required include component notes and/or senior and junior notes) and/or issue one or more participations therein, which restructuring may include reallocation of principal amounts of the Mortgage Loan and/or the Loan or the restructuring of a portion of the Mortgage Loan and/or the Loan into a mezzanine loan to the owners of the equity interests in the marketplace Borrower, secured by a pledge of such interests, or by the Rating Agencies in connection with any Secondary Market Transaction consummate one or more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, restructuring, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrower under this InstrumentAgreement, includingBorrower shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy market standards or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization, without limitationincluding using reasonable efforts to do (or cause to be done) the following (but Borrower will not in any event be required to incur, to:suffer or accept (except to a de minimis extent)
(i) any lesser rights or obligations than as currently set forth in the Loan Documents, and (ii) except as expressly set forth in this Article 9, any expense or liability):
(a) subject to the last paragraph of this Section 9.1, provide additional and/or updated Provided Information;
(b) deliver (i) provide such financial customary updates to opinions of counsel delivered in connection with the closing of the Loan as to non-consolidation, due execution and other information enforceability with respect to the Mortgaged Property, the Borrower and the Property Manager, (ii) perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and (iii) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Mortgaged Property, Borrower and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender holder of the Note or the Rating Agencies in connection with the Securitization; provided, that any such opinions of counsel that Borrower is required to cause to be delivered in connection with a Securitization other than those delivered at the original Loan closing, shall be delivered at Lender’s expense, it being agreed that in no event shall Borrower be obligated to deliver or pay for an opinion of counsel with respect to “true sale”, “no fraudulent conveyance” or “10b-5” matters, and (ii) if reasonably required by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereofAgencies, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;
(b) at revised organizational documents for Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel opinions and opinions organizational documents shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(c) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan;
(d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this Section; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or other agreements from parties to agreements that affect the delivery of Property, each with respect only to tenancies for commercial spaces, which estoppel letters, subordination agreements or other agreements shall be reasonably satisfactory to Lender and the Rating Confirmation.Agencies;
Appears in 1 contract
Sources: First Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Sale of Note and Securitization. At the request (a) Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, or require Borrower to restructure the Loan into multiple notes (which may include component notes and/or senior and junior notes) and/or issue one or more participations therein and/or syndicate the Loan, which restructuring may include the restructuring of a portion of the Loan into one or more mezzanine loans to the extent not already required to be provided direct and/or indirect owners of the equity interests in Borrower as reasonably, mutually determined by Borrower under this InstrumentLender and Borrower, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres secured by a pledge of such interests, or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use commercially reasonable good faith efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization, including, without limitation, to:
(a) (i) provide such financial and additional and/or updated Provided Information or other information with respect to the Mortgaged PropertyProperty reasonably requested or reasonably required by Lender, prospective investors or the Borrower Rating Agencies, together with, if customary or if otherwise requested by any Rating Agency, appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and the Property Manager, Rating Agencies;
(ii) perform review descriptive materials for presentations to any or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations all of the Mortgaged PropertyRating Agencies, as may be and work with third-party service providers engaged to obtain, collect, and deliver information reasonably requested or reasonably required by the Lender Lender, prospective investors or the Rating Agencies or Agencies;
(iii) if required by any Rating Agency, (i) deliver updated opinions of counsel as may be necessary or appropriate in connection to non-consolidation, due execution and enforceability with respect to the Secondary Market TransactionProperty, Borrower, any Guarantor, any of their respective Affiliates and the Loan Documents, and (iiiii) make amend the Special Purpose Entity provisions of the organizational documents for Borrower, which counsel opinions and amendments to the organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such representations additional tenant estoppel letters, subordination agreements and/or other agreements from parties to agreements that affect the Property, which estoppel letters, subordination agreements and warranties other agreements shall be reasonably satisfactory to Lender and the Rating Agencies;
(v) provide, as of the closing date of the Secondary Market Transaction with respect to the Mortgaged PropertySecuritization, Borrower updated representations and warranties made in the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, to the “Provided Information”), together, if customary, with appropriate verification and/or consents extent they are true as of the Provided Information through letters closing of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesSecuritization;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cvi) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be reasonably requested by the Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace any original note or modify any original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original note, but such new notes or modified note may change the interest rate of the Loan), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transaction; most favorable rating levels and achieve the optimum rating levels for the Loan, provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) such new notes or modified note will not change the interest rate, the stated maturity or the amortization of principal set forth in the Note unless the varying interest rates shall have the same initial weighted average coupon of the original Note, or (ii) such amendments to the Loan Documents or the new notes or modified note will not modify or amend any other economic or material economic term of the LoanLoan in a manner materially adverse to Borrower or Guarantors or any of their respective Constituent Members, and (iii) such amendments to the Loan Documents will not materially increase Borrower’s or Guarantors’ obligations and liabilities under the Loan Documents or materially decrease the rights of Borrower under the Loan Documents;
(dvii) if requested by Lender, review any information regarding the Property, Borrower, any Manager (if applicable) and/or the Loan which is contained in any preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any affiliate thereof; and
(viii) supply to Lender such documentation, financial statements and reports concerning Borrower, any Guarantor, the Loan and/or the Property in form and substance required in order to comply with any applicable securities laws.
(b) Lender shall pay all reasonable third party costs and expenses (including the fees and expenses of Lender’s legal counsel, but excluding the fees and expenses of Borrower’s legal counsel) in excess of Twenty Thousand Dollars ($20,000) incurred by ▇▇▇▇▇▇ Borrower in connection with ▇▇▇▇▇▇▇▇’s Borrower complying with requests made under this Section; andSection 9.1 and/or under Section 9.2 hereof, provided, however, the fees and expenses of Borrower’s legal counsel and Borrower’s administrative costs shall not be included in such amount and Borrower shall remain at all times responsible for the fees and expenses of its legal counsel and its own administrative costs. In addition to the foregoing, Lender expressly acknowledges and agrees that Borrower shall not be required to pay any Rating Agency surveillance charges.
(ec) Notwithstanding anything to the contrary contained in this Agreement, in the event of a Securitization that involves a participation or restructuring into one or more New Mezzanine Loans, Borrower shall not be required to deliver Rating Agency confirmations in accordance with the provisions terms and conditions of this Instrument or Agreement at any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the time that rated Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmationare not outstanding.
Appears in 1 contract
Sale of Note and Securitization. At the request (a) Each Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrumentor issue one or more participations therein, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrowers under this InstrumentAgreement, Borrowers shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which are reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization, and cooperate with Lender to accomplish the consummation of such Securitization, including, without limitation, to:
(a) (i) provide such financial additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and other the Rating Agencies;
(ii) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrowers and its Affiliates to obtain, collect and deliver information requested or required by Lender or the Rating Agencies;
(iii) deliver (A) updated opinions of counsel as to non-consolidation, due execution and enforceability with respect to the Mortgaged Property, the Borrower Collateral, Borrowers, Mortgage Borrowers and their respective Affiliates and the Property ManagerLoan Documents, including, without limitation, a so-called “10b-5” opinion and (iiB) perform revised Organizational Documents for Borrower, which counsel opinions and Organizational Documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or permit or cause other agreements from parties to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of agreements that affect the Mortgaged Property, as may which estoppel letters, subordination agreements or other agreements shall be reasonably requested by the satisfactory to Lender or and the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and Agencies;
(iiiv) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged Property, Borrower the Collateral, Borrowers, Mortgage Borrowers, Guarantors and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesDocuments;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cvi) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original note, but such new notes or modified note may change the interest rate of the Loan) and modify any cash management agreement with respect to the newly created components, such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transaction; provided, however, that most favorable rating levels and achieve the Borrower shall not be required to modify or amend any optimum rating levels for the Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in portion thereof subject to the Note, or (ii) modify or amend any other material economic term of the LoanSecuritization;
(dvii) pay all if requested by Lender, review any information regarding the Property, the Collateral, Guarantors, Borrowers, Mortgage Borrowers, the Manager and the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any Affiliate thereof; and
(viii) supply to Lender such documentation, financial statements and reports in form and substance required in order to comply with any applicable securities laws.
(b) All reasonable and actual third party costs and expenses incurred by ▇▇▇▇▇▇ Borrowers in connection with ▇▇▇▇▇▇▇▇’s Borrowers complying with requests made under this Section; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to Section 12.1.1 shall be given, pay all of the costs and expenses of the paid by Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.
Appears in 1 contract
Sources: First Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Sale of Note and Securitization. At the request of the Lender holder of the Note and, to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall shall, at no cost to Borrower, use reasonable efforts to satisfy the market standards to which the Lender holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction the sale of the Note or participation therein or the first successful securitization (such sale and/or securitization, the "SECURITIZATION") of rated single or multi-class securities (the “Securities”"SECURITIES") secured by or evidencing ownership interests in the Note and this Instrumentthe Mortgages, including, without limitation, to:
(a) (i) provide such financial and other information with respect to the Mortgaged PropertyProperties, the Borrower and its affiliates and the Property Manager, (ii) provide business plans and budgets relating to the Properties and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s 's and, if appropriate, Phase II’s's), engineering reports and other due diligence investigations of the Mortgaged PropertyProperties, as may be reasonably requested by the Lender holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionSecuritization (the "PROVIDED INFORMATION"), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies; provided that Borrower shall not be required to provide non-public information that may not be disclosed or otherwise disseminated to third parties at such time under the Securities Act or the Exchange Act or the rules and regulations promulgated thereunder;
(b) cause counsel to render opinions as to non-consolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Properties and Borrower and its affiliates, which counsel and opinions shall be reasonably satisfactory to the holder of the Note and the Rating Agencies;
(iiic) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged PropertyProperties, Borrower Borrower, and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender holder of the Note or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;Documents; and
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cd) execute such amendments to the Loan Documents and Borrower's organizational documents, documents and establish and fund the Replacement Reserve Fund such reserve funds (as defined in the Replacement Reserve Agreement), if any, including reserve funds for deferred maintenance and any Repairs (as defined in the Repair Agreement), if any, capital improvements) as may be requested by the Lender holder of the Note or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; Securitization, provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth nothing contained in the Note, or (ii) modify or amend any other material economic term of the Loan;
this subsection (d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ shall result in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this Section; and
(e) a material economic change in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmationtransaction.
Appears in 1 contract
Sources: Loan Agreement (Uniprop Manufactured Housing Communities Income Fund)
Sale of Note and Securitization. At the request (a) Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, or require Borrower to restructure the Loan into multiple notes (which may include component notes and/or senior and junior notes) (“Multiple Notes”) and/or issue one or more participations therein, which restructuring may include reallocation of principal amounts of the Loan or the restructuring of a portion of the loan into a mezzanine loan to the extent not already required to be provided owners of the equity interests in Borrower, secured by Borrower under this Instrumenta pledge of such interests, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”), provided that (i) the weighted average interest rate of the Loan and the Mezzanine Loan following any such reallocation or modification shall not be changed from the weighted average interest rate in effect immediately preceding such reallocation or modification, (ii) the principal balances of each of the Loan and the Mezzanine Loan following any such reallocation or modification shall equal the amount of the Outstanding Principal Balance of the Loan immediately prior to such reallocation or modification, and (iii) any other material term set forth in this InstrumentAgreement or the other Loan Documents shall not be adversely affected. At the request of Lender, includingand to the extent not already required to be provided by Borrower under this Agreement, without limitationBorrower shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization, including to:
(a) (i) provide such financial additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and other the Rating Agencies;
(ii) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrower, Guarantor and their respective Affiliates to obtain, collect, and deliver information requested or required by Lender or the Rating Agencies;
(iii) deliver (A) updated opinions of counsel as to non-consolidation, due execution and enforceability with respect to the Mortgaged Property, the Borrower Borrower, Guarantor and their respective Affiliates and the Property Manager, (ii) perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionLoan Documents, and (iiiB) revised organizational documents for Borrower, which counsel opinions and organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or other agreements from parties to agreements that affect the Property, which estoppel letters, subordination agreements or other agreements shall be reasonably satisfactory to Lender and the Rating Agencies;
(v) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged Property, Borrower Borrower, Guarantor and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesDocuments;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cvi) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original Note or modify the original Note, this Agreement and the other Loan Documents to reflect multiple components of the Loan (and such new notes or modified Note shall have the same initial weighted average coupon of the original Note and provide for the same total amortization payments, but each such new note or modified Note may have different interest rates and provide for varying amortization payments), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transactionmost favorable rating levels and achieve the optimum rating levels for the Loan; provided, however, that the Borrower shall not be required to modify or amend any of the Loan Document Documents if such modification or amendment would (iA) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, have a material adverse economic effect on Borrower or (iiB) modify or amend the Loan term, weighted average interest rate, amortization or any other material economic term of the LoanLoan or otherwise materially adversely increase the obligations or materially decrease the rights of Borrower under the Loan Documents, including modifying the transfer, recourse, prepayment, events of default, or remedy provisions, or the organizational documents of Borrower or its Affiliates;
(vii) if requested by Lender, review any information regarding the Property, Borrower, Guarantor, Manager and the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any Affiliate thereof; and
(viii) supply to Lender such documentation, financial statements and reports as may be in the possession or control of Borrower or its Affiliates in form and substance required in order to comply with any applicable securities laws.
(b) Borrower shall not be obligated to pay any costs or expenses incurred Guarantor in connection with Borrower complying with requests made under clause (a) of this Section 9.1, provided that Borrower shall be responsible for its own legal fees and other associated expenses.
(c) Notwithstanding the provisions of Section 9.1(a) hereof to the contrary, and without limiting the provisions of Section 9.7.1 and/or 9.7.2 hereof, Borrower covenants and agrees that after the Closing Date and prior to a Securitization, Lender shall have the right to establish different interest rates and to reallocate the amortization and principal balances of each of the Loan and the Mezzanine Loan between each other and to require the payment of the Loan and the Mezzanine Loan in such order of priority as may be designated by Lender; provided, however, that (i) the weighted average interest rate of the Loan and the Mezzanine Loan following any such reallocation or modification shall not be changed from the weighted average interest rate in effect immediately preceding such reallocation or modification, (ii) the aggregate principal balance of the Loan and the Mezzanine Loan following any such reallocation or modification shall equal the aggregate principal balance of the Loan and the Mezzanine Loan immediately prior to such reallocation or modification, and (iii) Borrower’s rights and obligations any other material term of the Loan Agreement or the other Loan Documents shall not be materially adversely affected.
(d) pay In connection with a Securitization or other sale of all or a portion of the Loan, Lender shall have the right to modify all operative dates (including payment dates, interest period start dates and end dates, etc) under the Loan Documents, by up to ten (10) days (such action and all related action is a “Re-Dating”). Borrower shall cooperate with Lender to implement any Re-Dating. If Borrower fails to cooperate with Lender within ten (10) Business Days of written request by Lender, Lender is hereby appointed as Borrower’s attorney-in-fact, coupled with an interest, to execute any and all documents necessary to accomplish the Re-Dating.
(e) All reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Borrower, Guarantor or Lender in connection with ▇▇▇▇▇▇▇▇’s Borrower complying with requests made under this Section; and
clauses (ec) in the event that the provisions and (d) of this Instrument or any of Section 9.1 (including the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs fees and expenses of the Rating Agencies) shall be paid by Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.
Appears in 1 contract
Sale of Note and Securitization. At the request Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, or require Borrower to restructure the Loan into multiple notes (which may include component notes and/or senior and junior notes) and/or issue one or more participations therein, which restructuring may include reallocation of principal amounts of the Loan or the restructuring of a portion of the Loan into a mezzanine loan to the extent not already required to be provided owners of the equity interests in Borrower, secured by Borrower under this Instrumenta pledge of such interests, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization including, without limitation, to:
(a) provide or cause Mortgage Borrower to provide additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and the Rating Agencies;
(b) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrower or its Affiliates to obtain, collect, and deliver information requested or required by Lender or the Rating Agencies;
(c) deliver (i) provide such financial updated opinions of counsel as to non-consolidation, due execution and other information enforceability with respect to the Mortgaged PropertyMortgage Borrower, the Borrower Borrower, General Partner, Principal and their respective Affiliates and the Property ManagerLoan Documents, including, without limitation, a so-called “10b-5” opinion and (ii) perform revised organizational documents for Borrower, Mortgage Borrower, General Partner or permit or cause Principal which counsel opinions and organizational documents shall be reasonably satisfactory to be performed or permitted Lender and the Rating Agencies;
(d) if required by any Rating Agency, use commercially reasonable efforts to deliver such site inspection, appraisals, market studies, environmental reviews and reports additional tenant estoppel letters (Phase I’s and, if appropriate, Phase II’sfrom commercial tenants), engineering reports and subordination agreements or other due diligence investigations of agreements from parties to agreements that affect the Mortgaged Property, as may which estoppel letters, subordination agreements or other agreements shall be reasonably requested by the satisfactory to Lender or and the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and Agencies;
(iiie) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged Collateral, Property, Borrower Borrower, Mortgage Borrower, General Partner, Principal, Guarantor and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesDocuments;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cf) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original Note or modify the original Note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original Note, but each such new note or modified note may change the interest rate and amortization of the Loan), and modify the Mortgage Cash Management Agreement and the Mezzanine Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transaction; provided, however, that most favorable rating levels and achieve the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of optimum rating levels for the Loan;
(dg) pay all reasonable third party if requested by Lender, review any information regarding the Property, the Collateral, Borrower, Guarantor, Mortgage Borrower, General Partner, Principal, the Manager and the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other Disclosure Document to be used by Lender or any affiliate thereof; and
(h) supply to Lender such documentation, financial statements and reports concerning Borrower, Mortgage Borrower, General Partner, Principal, Guarantor, the Loan, the Collateral and/or the Property in form and substance required in order to comply with any applicable securities laws. The costs and expenses incurred by ▇▇▇▇▇▇ Borrower (and/or Lender) in connection with ▇▇▇▇▇▇▇▇Borrower’s complying with requests made under this Section; and
Section 9.1 (e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be givenincluding, pay all of the costs without limitation, counsel fees and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed Agencies) shall be paid by any Rating Agencies as a condition to the delivery of the Rating ConfirmationBorrower.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (CNL Income Properties Inc)
Sale of Note and Securitization. At the request of the Lender (but not its assigns) and, to the extent not already required to be provided by Borrower under this InstrumentMortgage, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction the sale of the Note or participation therein or the first successful securitization (such sale and/or securitization, the "Securitization") of rated single or multi-class securities (the “"Securities”") secured by or evidencing ownership interests in the Note and this InstrumentMortgage, including, without limitation, to:
(a) (i) : provide such financial and other information with respect to the Mortgaged Property, the Borrower and its affiliates, the Property ManagerManager and any Tenants of the Property (to the extent available), (ii) provide business plans and budgets relating to the Property and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s 's and, if appropriate, Phase II’s's), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionSecuritization (all information provided pursuant to this Section 44(a), and (iii) make such representations and warranties as of the closing date of the Secondary Market Transaction together with respect all other information heretofore provided to the Mortgaged Property, Borrower and Lender in connection with the Loan Documents as are customarily or hereafter provided to Lender in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent connection with the facts covered by such representations and warranties as they exist on Loan or a Securitization, being herein collectively called the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “"Provided Information”Informatio n"), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors auditors, engineers or opinions appraisers or Opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesCounsel;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(c) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan;
(d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this Section; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.
Appears in 1 contract
Sources: Secured Indebtedness Agreement (Parkway Properties Inc)
Sale of Note and Securitization. At the request Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrumentor issue one or more participations therein, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to provide information not in the possession of Lender or that may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or that may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization including, without limitation, to:
(a) provide additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and the Rating Agencies;
(b) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrower, Principal and their respective affiliates to obtain, collect, and deliver information requested or required by Lender or the Rating Agencies;
(c) if required by the Rating Agencies, deliver (i) provide such financial updated opinions of counsel as to non-consolidation, due execution and other information enforceability with respect to the Mortgaged Property, the Borrower Borrower, Principal and their respective Affiliates and the Property ManagerLoan Documents, and (ii) perform revised organizational documents for Borrower, which counsel opinions and organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(d) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or permit or cause other agreements from parties to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of agreements that affect the Mortgaged Property, as may which estoppel letters, subordination agreements or other agreements shall be reasonably requested by the satisfactory to Lender or and the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and Agencies;
(iiie) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged Property, Borrower Borrower, Principal and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesDocuments;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cf) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original note, but such new notes or modified note may not change the weighted interest rate or amortization of the Loan), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transaction; provided, however, that most favorable rating levels and achieve the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of optimum rating levels for the Loan;
(dg) pay all if requested by Lender, review any information regarding the Property, Borrower, Principal, the Manager and the Loan that is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any affiliate thereof; and
(h) supply to Lender such documentation, financial statements and reports concerning Borrower, Principal, Guarantor, the Loan and/or the Property in form and substance required in order to comply with any applicable securities laws. All reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Borrower or Lender in connection with ▇▇▇▇▇▇▇▇Borrower’s complying with requests made under this Section; and
Section 9.1 (e) in including, without limitation, the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs fees and expenses of the LenderRating Agencies) shall be paid by Borrower, Loan Servicer and each of not to exceed the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating ConfirmationSecuritization Cost Cap.
Appears in 1 contract
Sources: Loan Agreement (Eagle Hospitality Properties Trust, Inc.)
Sale of Note and Securitization. Lender shall have the right to dispose of the Loan, the Note, and the Loan Documents, whether in connection with a Secondary Market Transaction or otherwise, with no requirement of consent from the Borrower. At the request of the Lender holder of the Note and, to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction the sale of the Note or participation therein or the first successful securitization (such sale and/or securitization, the "Securitization") of rated single or multi-class securities (the “"Securities”") secured by or evidencing ownership interests in the Note and this Instrumentthe Mortgage, including, without limitation, to:
(a) (i) provide such financial and other information with respect to the Mortgaged Property, the Borrower and its affiliates, the Property ManagerManager and any tenants of the Property, (ii) provide business plans and budgets relating to the Property and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s 's and, if appropriate, Phase II’s's), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionSecuritization (the "Provided Information"), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Lender and the Rating Agencies;
(b) at Lender's expense, cause counsel to render opinions in form customary for securitization transactions as to non-consolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Property and Borrower and its affiliates, which counsel and opinions shall be reasonably satisfactory to the holder of the Note and the Rating Agencies; (iiic) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged Property, Borrower Borrower, and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender holder of the Note or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(c) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan;
(d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this SectionDocuments; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.
Appears in 1 contract
Sale of Note and Securitization. At Borrower acknowledges and agrees that the request Lender may sell all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrumentor issue one or more participations therein, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use commercially reasonable good faith efforts to provide existing information not in the possession of Lender or which may be reasonably required by Lender (excluding any confidential information concerning Marriott Manager as required by the terms of the Management Agreement or Sponsor’s Constituent Members) in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization including, without limitation, to:
(a) (i) provide such financial and updated Provided Information or other existing information with respect to the Mortgaged Property, the Borrower and the Property Manager, (ii) perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and (iii) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Mortgaged Property, Borrower and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, together with appropriate verification and/or consents of related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to the Lender and to the Rating Agencies;
(b) at Borrower’s expensereview descriptive materials for presentations to any or all of the Rating Agencies, cause its counsel and work with, third-party service providers engaged to render opinionsobtain, which may be relied upon collect, and deliver information reasonably requested or reasonably required by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale prospective investors or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(c) execute such amendments to the Loan Documents and organizational documentsif required by any Rating Agency, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would deliver (i) change the interest rateupdated opinions of counsel as to non-consolidation, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan;
(d) pay all reasonable third party costs due execution and expenses incurred by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this Section; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation enforceability with respect to the ratings on Property, Borrower, the Securities or if Principal and the terms Loan Documents, and (ii) amend the Special Purpose Entity provisions of the transaction organizational documents relating for Borrower, which counsel opinions and amendments to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the organizational documents shall be reasonably satisfactory to Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.Agencies;
Appears in 1 contract
Sale of Note and Securitization. At the request of the Lender Beneficiary and, to the extent not already required to be provided by Borrower Grantor under this InstrumentMortgage, Borrower Grantor shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace or by requirements of the Rating Agencies in connection with any Secondary Market Transaction either (x) the sale of the Notes or participation therein or (y) the first successful securitization (such sale and/or securitization, the "Securitization") of rated single or multi-class securities (the “"Securities”") secured by or evidencing ownership interests in the Note Notes and this InstrumentMortgage, including, without limitation, to:
(a) : (i) subject to the terms of the Operating Agreements, provide such financial and other information with respect to the Mortgaged Property, Grantor and its Affiliates, the Borrower Manager (to the extent available) and any Tenants (to the Property Managerextent available) of the Properties, (ii) perform or provide business plans and budgets relating to the Properties and (iii) permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s 's and, if appropriate, Phase II’s's), engineering reports and other due diligence investigations of the Mortgaged PropertyProperties, as may be reasonably requested by the Lender Beneficiary or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionSecuritization (the "Provided Information"); provided, however, that no General Partner nor any constituent partner of Grantor nor any principal, Affiliate of Grantor or any other related Person shall be required to make any representations, warranties or covenants in connection with the Securitization, nor shall such Persons be liable for any representations, warranties or covenants made by Grantor and; further provided, that any such environmental reviews and reports and engineering reports shall be performed by reputable engineers that are licensed to practice in Tennessee and approved by Grantor; (iiiii) make such representations and warranties as cause counsel to render opinions of the closing date of the Secondary Market Transaction (x) with respect to the Mortgaged PropertyProperties and Grantor, Borrower and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliatesa 10b-5 Opinion, which counsel and opinions shall be reasonably satisfactory to the Lender Beneficiary and to the Rating Agencies;
(c) execute such amendments ; for the purposes hereof, the "10b-5 Opinion" shall mean an opinion or other written assurance of counsel reasonably acceptable to Beneficiary regarding the Loan Documents and organizational documentsabsence of any misstatement of a material fact, establish and fund or the Replacement Reserve Fund (as defined omission to state a material fact in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested Disclosure Document provided by the Lender or by the Rating Agencies or otherwise Grantor to effect the Secondary Market Transaction; provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan;
(d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Beneficiary in connection with ▇▇▇▇▇▇▇▇’s complying with requests the origination of the Loan and (y) a non- consolidation opinion in substantially the same form as such opinion delivered on the Closing Date. The 10b-5 Opinion shall be delivered within fifteen (15) Business Days of the request therefor made under this Sectionby the holder of the Notes; and
(e) in the event provided that the provisions of this Instrument or any final draft of the other Loan Documents require the receipt of a Rating Confirmation with respect Disclosure Document (as hereinafter defined) has been received by Grantor prior to the ratings on the Securities or if the terms commencement of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.such fifteen (15) Business Day period. 108
Appears in 1 contract
Sale of Note and Securitization. At the request of the Lender holder of the Note and, to the extent not already required to be provided by Borrower Grantor under this InstrumentMortgage, Borrower Grantor shall use reasonable efforts to satisfy the market standards to which the Lender holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction the sale of the Note or participation therein or the first successful securitization (such sale and/or securitization, the "Securitization") of rated single or multi-class securities (the “"Securities”") secured by or evidencing ownership interests in the Note and this Instrumentthe Mortgage, including, without limitation, to:
(aA) (i) provide such financial and other information with respect to the Mortgaged PropertyProperties, Grantor and its affiliates, the Borrower Manager and any Tenants of the Property ManagerProperties, (ii) provide business plans and budgets relating to the Properties and (iii) to perform or permit or cause to be performed or permitted at Beneficiary's sole cost and expense such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s 's and, if appropriate, Phase II’s's), engineering reports and other due diligence investigations of the Mortgaged PropertyProperties, as may be reasonably requested by the Lender holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionSecuritization (the "Provided Information"), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to Beneficiary and the Rating Agencies;
(B) at Beneficiary's expense, cause counsel to render opinions as to fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Properties and Grantor and its affiliates, including, without limitation, a Bankruptcy Opinion and a 10b-5 Opinion, which counsel and opinions shall be reasonably satisfactory to the holder of the Note and the Rating Agencies; for the purposes hereof, (iiii) "Bankruptcy Opinion" shall mean an opinion to the effect that if the Grantor or the general partner of the Grantor were a debtor under the U.S. Bankruptcy Code, a court would not have valid legal grounds to cause the Grantor to be substantively consolidated with any other Person and (ii) the "10b-5 Opinion" shall mean an opinion or other written assurance of counsel acceptable to Beneficiary and its counsel regarding the absence of any misstatement of a material fact, or the omission to state a material fact in any materials provided by the Grantor to the Beneficiary in connection with the origination of the Loan. (C) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged PropertyProperties, Borrower Grantor, and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender holder of the Note or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(c) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan;
(d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this SectionDocuments; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.
Appears in 1 contract
Sale of Note and Securitization. At the request of the Lender and, to the extent not already required to be provided by Borrower under this Instrument, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction of rated single or multi-class securities (the “Securities”) secured by or evidencing ownership interests in the Note and this Instrument, including, without limitation, to:
(a) (i) provide such financial and other information with respect to the Mortgaged Property, the Borrower and the Property Manager, (ii) perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and (iii) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Mortgaged Property, Borrower and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(c) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan;
(d) pay all reasonable third party costs and expenses incurred by ▇L▇▇▇▇▇ in connection with ▇B▇▇▇▇▇▇▇’s complying with requests made under this Section; and
(e) in the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.any
Appears in 1 contract
Sources: Multifamily Deed of Trust, Assignment of Rents and Security Agreement (NTS Realty Holdings Lp)
Sale of Note and Securitization. At the request Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrumentor issue one or more participations therein, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to provide information, and cause IDOT Guarantor to provide information, not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization including, without limitation, to:
(a) (i) provide such financial and other information additional and/or updated Provided Information, together with respect appropriate verification and/or consents related to the Mortgaged PropertyProvided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and the Rating Agencies;
(b) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrower, IDOT Guarantor, the Borrower Principal and the Property Managertheir respective affiliates to obtain, (ii) perform collect, and deliver information requested or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested required by the Lender or the Rating Agencies Agencies;
(c) deliver (i) updated opinions of counsel as to non-consolidation, due execution and enforceability with respect to any Individual Property, Borrower, IDOT Guarantor, Operating Tenant, Principal and their respective Affiliates and the Loan Documents, including, without limitation, a so-called “10b-5” opinion and (ii) revised organizational documents for Borrower and, which counsel opinions and organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(d) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, for any tenants occupying in excess of 3,000 square feet of space, subordination agreements or as may other agreements from parties to agreements that affect the Property, which estoppel letters, subordination agreements or other agreements shall be necessary or appropriate substantially in the form used in connection with the Secondary Market TransactionClosing, if applicable, and if not, reasonably satisfactory to Lender and the Rating Agencies;
(iiie) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged any Individual Property, Borrower Borrower, IDOT Guarantor, Operating Tenant, Principal and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including to the extent of the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesDocuments;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cf) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or the Rating Agencies to effect the Securitization (provided, that no such amendments shall increase the overall obligations of Borrower or Guarantor or reduce the overall rights of Guarantor or Borrower under the Loan Documents) and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original note, but such new notes or modified note may not change the weighted interest rate or amortization of the Loan), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transaction; provided, however, that most favorable rating levels and achieve the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of optimum rating levels for the Loan;
(dg) pay if requested by Lender, review any information regarding any Individual Property, Borrower, IDOT Guarantor, Principal, Operating Tenant, Manager and the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any affiliate thereof; and
(h) supply to Lender such documentation, financial statements and reports concerning any Borrower, Principal, Guarantor, Operating Tenant, the Loan and/or the Property in form and substance required in order to comply with any applicable securities laws. Lender shall bear all costs and expenses incurred by Borrower, IDOT Guarantor or Lender in connection with the Securitization, including all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Borrower or Lender in connection with ▇▇▇▇▇▇▇▇Borrower’s complying with requests made under this Section; and
Section 9.1 (e) in including, without limitation, reasonable attorneys’ and accountants’ fees and the event that the provisions of this Instrument or any fees and expenses of the other Loan Documents require Rating Agencies); provided, that Borrower shall pay its attorneys’ fees and disbursements up to $10,000 (the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the “Borrower Securitization Expenses”). Lender to be given, pay all of the shall promptly reimburse such costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition Borrower or pay such amounts directly to the delivery of the Rating Confirmationsuch third parties.
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Sale of Note and Securitization. At the request Borrowers acknowledge and agree that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, or require Borrowers to restructure the Loan into multiple notes (which may include component notes and/or senior and junior notes) and/or issue one or more participations therein and/or syndicate the Loan, which restructuring may include the restructuring of a portion of the Loan into one or more mezzanine loans to the extent not already required to be provided direct and/or indirect owners of the equity interests in Borrowers as reasonably, mutually determined by Borrower under this InstrumentLender and Borrowers and that are direct or indirect subsidiaries of HR Holdings, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres secured by a pledge of such interests, or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrowers under this InstrumentAgreement, Borrowers shall use commercially reasonable good faith efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization including, without limitation, to:
(a) (i) provide such financial and additional and/or updated Provided Information or other information with respect to the Mortgaged PropertyProperties and/or the IP reasonably requested or reasonably required by Lender, prospective investors or the Rating Agencies, together with, if customary or if otherwise requested by any Rating Agency, appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and the Rating Agencies;
(b) review descriptive materials for presentations to any or all of the Rating Agencies, and work with third-party service providers engaged to obtain, collect, and deliver information reasonably requested or reasonably required by Lender, prospective investors or the Rating Agencies;
(c) if required by any Rating Agency, (i) deliver updated opinions of counsel as to non-consolidation, due execution and enforceability with respect to the Properties, the Borrower IP, any Borrower, HRHI, any Guarantor, any of their respective Affiliates and the Property ManagerLoan Documents, and (ii) perform amend the Special Purpose Entity provisions of the organizational documents for each Borrower, which counsel opinions and amendments to the organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(d) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements and/or other agreements from parties to agreements that affect any of the Properties or permit or cause to be performed or permitted such site inspectionthe IP, appraisalswhich estoppel letters, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports subordination agreements and other due diligence investigations of the Mortgaged Property, as may agreements shall be reasonably requested by the satisfactory to Lender or and the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionAgencies;
(e) provide, and (iii) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Mortgaged PropertySecuritization, Borrower updated representations and warranties made in the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, to the “Provided Information”), together, if customary, with appropriate verification and/or consents extent they are true as of the Provided Information through letters closing of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesSecuritization;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cf) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be reasonably requested by the Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original note or modify the original note to reflect multiple components of the Loan (and such new notes or modified note shall have the same initial weighted average coupon of the original note, but such new notes or modified note may change the interest rate of the Loan), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transaction; most favorable rating levels and achieve the optimum rating levels for the Loan, provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) such new notes or modified note will not change the interest rate, the stated maturity or the amortization of principal set forth in the Note unless the varying interest rates shall have the same initial weighted average coupon of the original Note, or (ii) such amendments to the Loan Documents or the new notes or modified note will not modify or amend any other economic or material economic term of the LoanLoan in a manner materially adverse to Borrowers, HRHI or Guarantors or any of their respective Constituent Members, or (iii) such amendments to the Loan Documents will not materially increase Borrowers’ or Guarantors’ obligations and liabilities under the Loan Documents or materially decrease the rights of Borrowers under the Loan Documents;
(dg) if requested by Lender, review any information regarding any Property, the IP, any Borrower, HRHI, the Gaming Operator, any Manager, the Liquor Manager and/or the Loan which is contained in any preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any affiliate thereof; and
(h) supply to Lender such documentation, financial statements and reports concerning any Borrower, HRHI, any Guarantor, the Loan, any Property and/or the IP in form and substance required in order to comply with any applicable securities laws. Lender shall pay all reasonable third party costs and expenses (excluding fees and expenses of Borrowers’ legal counsel) in excess of Twenty Thousand Dollars ($20,000) incurred by ▇▇▇▇▇▇ Borrowers in connection with ▇▇▇▇▇▇▇▇’s Borrowers’ complying with requests made under this Section; and
(e) in Section 9.1 and/or under Section 9.1.2 hereof, provided, however, the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs fees and expenses of Borrowers’ legal counsel and Borrowers’ administrative costs shall not be included in such amount and Borrowers shall remain at all times responsible for the Lenderfees and expenses of its legal counsel and its own administrative costs. In addition to the foregoing, Loan Servicer Lender expressly acknowledges and each of the Rating Agencies in connection with any agrees that Borrowers shall not be required Rating Confirmation and, if applicable, any fees imposed by to pay any Rating Agencies as a condition to the delivery of the Rating ConfirmationAgency surveillance charges.
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Sale of Note and Securitization. At the request of the Lender holder of the Note and, to the extent not already required to be provided by Borrower under this InstrumentMortgage, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender holder of the Note customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transaction the sale of the Note or participation therein or the first successful securitization (such sale and/or securitization, the "Securitization") of rated single or multi-class securities (the “"Securities”") secured by or evidencing ownership interests in the Note and this Instrumentthe Mortgage, including, without limitation, to:
(a) at Lender's expense, (i) provide such financial and other information with respect to the Mortgaged PropertyProperties, Borrower and its Affiliates, the Borrower Manager and any Tenants of the Property ManagerProperties, (ii) provide business plans and budgets relating to the Properties and (iii) to perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase phase I’s 's and, if appropriate, Phase phase II’s's), engineering reports and other due diligence investigations of the Mortgaged PropertyProperties, as may be reasonably requested by the Lender holder of the Note or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and Securitization (iii) make such representations and warranties as of the closing date of the Secondary Market Transaction with respect to the Mortgaged Property, Borrower and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “"Provided Information”"), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating Agencies;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, opinions as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property Properties and Borrower and its Affiliates, including, without limitation, a Bankruptcy Opinion, to be provided at Lender's expense, and a 10b-5 Opinion, to be provided at the request of Lender, which counsel and opinions shall be reasonably satisfactory to the Lender holder of the Note and to the Rating Agencies;
; for the purposes hereof, (ci) execute such amendments "Bankruptcy Opinion" shall mean an opinion to the Loan Documents effect that if the Borrower or the general partner of the Borrower were a debtor under the U.S. Bankruptcy Code, a court would not have valid legal grounds to cause the Borrower to be substantively consolidated with any other Person and organizational documents(ii) the "10b-5 Opinion" shall mean an opinion or other written assurance of counsel acceptable to Lender and its counsel regarding the absence of any misstatement of a material fact, establish and fund or the Replacement Reserve Fund (as defined omission to state a material fact in any materials, other than financial information with respect to the Replacement Reserve Agreement)Properties or the Loan, if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested provided by the Borrower to the Lender or by in connection with the Rating Agencies or otherwise origination of the Loan, including without limitation information with respect to effect the Secondary Market Transaction; Mortgage, the Mortgaged Property, the Manager, the Borrower and other legal aspects of the Mortgage Loan. The 10b-5 Opinion shall be delivered at Lender's expense, provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the Loan;
(d) pay all reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ in connection with ▇▇▇▇▇▇▇▇’s complying with requests made under this Section; and
the 10b-5 Opinion exceeding $20,000. Borrower's failure to deliver the opinions required hereby within ten (e10) in the event that the provisions Business Days shall constitute an "Event of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs and expenses of the Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.Default" hereunder;
Appears in 1 contract
Sources: Mortgage, Deed of Trust, Deed to Secure Debt, Security Agreement (Homestead Village Inc)
Sale of Note and Securitization. At the request Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrumentor issue one or more participations therein, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization including, without limitation, to:
(a) provide additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and the Rating Agencies;
(b) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrower, Principal and their respective affiliates to obtain, collect, and deliver information requested or required by Lender or the Rating Agencies;
(c) if required by the Rating Agencies, deliver (i) provide such financial updated opinions of counsel as to non-consolidation, due execution and other information enforceability with respect to the Mortgaged Property, the Borrower Borrower, Principal and their respective Affiliates and the Property ManagerLoan Documents, and (ii) perform revised organizational documents for Borrower, which counsel opinions and organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(d) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or permit or cause other agreements from parties to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of agreements that affect the Mortgaged Property, as may which estoppel letters, subordination agreements or other agreements shall be reasonably requested by the satisfactory to Lender or and the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market Transaction, and Agencies;
(iiie) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged Property, Borrower Borrower, Principal and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesDocuments;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cf) execute such non-material amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or by the Rating Agencies or otherwise to effect the Secondary Market Transaction; provided, however, that the Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, or (ii) modify or amend any other material economic term of the LoanSecuritization;
(dg) pay all if requested by Lender, review any information regarding the Property, Borrower, Principal, the Manager and the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any affiliate thereof; and
(h) supply to Lender such documentation, financial statements and reports concerning Borrower, Principal, Guarantor, the Loan and/or the Property in form and substance required in order to comply with any applicable securities laws. All reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Borrower or Lender in connection with ▇▇▇▇▇▇▇▇Borrower’s complying with requests made under this Section; and
Section 9.1 (e) in including, without limitation, the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs fees and expenses of the Rating Agencies) shall be paid by Lender, Loan Servicer and each of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation.
Appears in 1 contract
Sale of Note and Securitization. At the request (a) Borrower acknowledges and agrees that Lender may sell all or any portion of the Lender andLoan and the Loan Documents, to the extent not already required to be provided by Borrower under this Instrumentor issue one or more participations therein, Borrower shall use reasonable efforts to satisfy the market standards to which the Lender customarily adheres or which may be reasonably required in the marketplace consummate one or by the Rating Agencies in connection with any Secondary Market Transaction more private or public securitizations of rated single single- or multi-class securities (the “Securities”) secured by or evidencing ownership interests in all or any portion of the Note Loan and the Loan Documents or a pool of assets that include the Loan and the Loan Documents (such sales, participations and/or securitizations, collectively, a “Securitization”). At the request of Lender, and to the extent not already required to be provided by Borrower under this InstrumentAgreement, Borrower shall use reasonable efforts to provide information not in the possession of Lender or which may be reasonably required by Lender in order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required by prospective investors and/or the Rating Agencies in connection with any such Securitization including, without limitation, to:
(a) (i) provide such financial or cause Mortgage Borrower to provide additional and/or updated Provided Information, together with appropriate verification and/or consents related to the Provided Information through letters of auditors or opinions of counsel of independent attorneys reasonably acceptable to Lender and other the Rating Agencies;
(ii) assist in preparing descriptive materials for presentations to any or all of the Rating Agencies, and work with, and if requested, supervise, third-party service providers engaged by Borrower, Principal and their respective affiliates to obtain, collect, and deliver information requested or required by Lender or the Rating Agencies;
(iii) deliver (A) updated opinions of counsel as to non-consolidation, due execution and enforceability with respect to the Mortgaged Property, the Borrower Mortgage Borrower, Borrower, Principal, Guarantor and their respective Affiliates and the Property Manager, (ii) perform or permit or cause to be performed or permitted such site inspection, appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), engineering reports and other due diligence investigations of the Mortgaged Property, as may be reasonably requested by the Lender or the Rating Agencies or as may be necessary or appropriate in connection with the Secondary Market TransactionLoan Documents, and (iiiB) revised organizational documents for Borrower, which counsel opinions and organizational documents shall be reasonably satisfactory to Lender and the Rating Agencies;
(iv) if required by any Rating Agency, use commercially reasonable efforts to deliver such additional tenant estoppel letters, subordination agreements or other agreements from parties to agreements that affect the Property, which estoppel letters, subordination agreements or other agreements shall be reasonably satisfactory to Lender and the Rating Agencies;
(v) make such representations and warranties as of the closing date of the Secondary Market Transaction Securitization with respect to the Mortgaged PropertyCollateral, Borrower Borrower, Principal, Guarantor, Mortgage Borrower, the Property and the Loan Documents as are customarily provided in securitization transactions and as may be reasonably requested by the Lender or by the Rating Agencies and consistent with the facts covered by such representations and warranties as they exist on the date thereof, including the representations and warranties made in the Loan Documents (collectively, the “Provided Information”), together, if customary, with appropriate verification and/or consents of the Provided Information through letters of auditors or opinions of counsel of independent attorneys acceptable to the Lender and to the Rating AgenciesDocuments;
(b) at Borrower’s expense, cause its counsel to render opinions, which may be relied upon by the Lender, the Rating Agencies and their respective counsel, agents and representatives, as to nonconsolidation, fraudulent conveyance, and true sale or any other opinion customary in securitization transactions with respect to the Mortgaged Property and Borrower and its Affiliates, which counsel and opinions shall be reasonably satisfactory to the Lender and to the Rating Agencies;
(cvi) execute such amendments to the Loan Documents and organizational documents, establish and fund the Replacement Reserve Fund (as defined in the Replacement Reserve Agreement), if any, and any Repairs (as defined in the Repair Agreement), if any, as may be requested by the Lender or the Rating Agencies to effect the Securitization and/or deliver one or more new component notes to replace the original Note or modify the original Note, this Agreement and the other Loan Documents to reflect multiple components of the Loan (and such new notes or modified Note shall have the same initial weighted average coupon of the original Note and provide for the same total amortization payments, but each such new notes or modified Note may have different interest rates and provide for varying amortization payments), and modify the Cash Management Agreement with respect to the newly created components such that the pricing and marketability of the Securities and the size of each class of Securities and the rating assigned to each such class by the Rating Agencies or otherwise to effect shall provide the Secondary Market Transactionmost favorable rating levels and achieve the optimum rating levels for the Loan; provided, however, that the Borrower shall not be required to modify or amend any of the Loan Document Documents if such modification or amendment would (i) change the interest rate, the stated maturity or the amortization of principal set forth in the Note, have a material adverse economic effect on Borrower or (ii) modify or amend the Loan term, amortization or any other material economic term of the LoanLoan or otherwise materially adversely increase the obligations or materially decrease the rights of Borrower under the Loan Documents, including, without limitation, modifying the transfer, recourse, prepayment, events of default, or remedy provisions, or the organizational documents of Borrower or its Affiliates;
(dvii) pay all if requested by Lender, review any information regarding the Property, Borrower, Principal, Guarantor, Manager, the Sub-Manager, Mortgage Borrower, the Collateral and the Loan which is contained in a preliminary or final private placement memorandum, prospectus, prospectus supplement (including any amendment or supplement to either thereof), or other disclosure document to be used by Lender or any affiliate thereof; and
(viii) supply to Lender such documentation, financial statements and reports as may be in the possession or control of Borrower or its Affiliates in form and substance required in order to comply with any applicable securities laws.
(b) All reasonable third party costs and expenses incurred by ▇▇▇▇▇▇ Borrower in connection with ▇▇▇▇▇▇▇▇’s Borrower complying with requests made under this Section; and
Section 9.1 (e) in including, without limitation, the event that the provisions of this Instrument or any of the other Loan Documents require the receipt of a Rating Confirmation with respect to the ratings on the Securities or if the terms of the transaction documents relating to a Secondary Market Transaction require a Rating Confirmation in order for the consent of the Lender to be given, pay all of the costs fees and expenses of the LenderRating Agencies) shall be paid by Borrower, Loan Servicer except that Lender shall reimburse Borrower for all such costs and each expenses in excess of the Rating Agencies in connection with any required Rating Confirmation and, if applicable, any fees imposed by any Rating Agencies as a condition to the delivery of the Rating Confirmation$25,000.00.
Appears in 1 contract