Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”. (b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation, to: (i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Operating Partnership and Manager, (B) provide updated budgets relating to the Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies; (ii) provide opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to matters of Delaware law relating to limited liability companies, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies; (iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require; (iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and (v) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates, but which shall have the same weighted average coupon of the original Note. (c) Borrower shall be responsible for any of Borrower’s out-of-pocket and internal costs and expenses incurred in connection with Borrower’s compliance with this Section 11.1 (including, without limitation, Borrower’s attorney’s fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that Borrower shall not be required to reimburse Lender for Lender’s costs and expenses in connection with this Section 11. 1. Notwithstanding the foregoing or anything herein to the contrary, Borrower shall pay for any costs and expenses with respect to items which Borrower is otherwise required to deliver pursuant to the terms of the Loan Documents.
Appears in 1 contract
Securitization. SC and the General Partner shall use -------------- commercially reasonable best efforts to cooperate with NACC in its activities in connection with the sale of the SC Loan as a whole loan or any securitization of the SC Loan (the "Securitization"), including obtaining ratings by the Rating -------------- Agencies. The Securitization will involve the issuance of rated single- or multi-class securities secured by or evidencing ownership interests in the Transaction Documents (the "Securities"). Such cooperation shall include, ---------- without limitation, the obligation to:
(a) Lender shall have maintain the right (i) ownership of the SC Property in an entity that permits it to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in comply with its obligations under clauses (i), (iix) and (iiiz) above shall hereinafter be referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”.of Section 5.2;
(b) If to the extent permitted under SC's Amended and Restated Agreement of Limited Partnership without the consent of its limited partners, structure and maintain its organizational, operational and financial affairs and the affairs of the General Partner (collectively, the "Entities") to enable its -------- counsel to render a reasoned opinion if requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection form and substance customary or required for rating the Securities (the "Substantive ----------- Consolidation Opinion") that upon a petition for bankruptcy under the United --------------------- States Bankruptcy Code, neither Host Marriott as a debtor in possession nor its bankruptcy trustees nor creditors should cause a court to order the substantive consolidation of SC's assets and liabilities or those of the General Partner with any Secondary Market Transactionsthose of Host Marriott, including, without limitation, to:which counsel and which opinion shall be satisfactory to NACC and the Rating Agencies;
(i) (Ac) provide updated such financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Operating Partnership and Manager, (B) provide updated budgets relating to the Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender it and the Rating Agencies;
(ii) provide opinions of counsel, which SC Property as may be relied upon requested by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to matters of Delaware law relating to limited liability companies, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(v) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization NACC, including, without limitation, bifurcation audits or agreed-upon procedures of operating cash flow and Net Operating Income, occupancy statistics, and average rents and quarterly and annual financial statements for the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure SC Property (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity or the amortization of principal set forth reviewed and in the Note, except in connection with case of annual financial statements audited) by a Loan Bifurcation which may result in varying fixed interest rates, but which shall have firm of certified public accountants acceptable to NACC and the same weighted average coupon of the original Note.
(c) Borrower shall be responsible for any of Borrower’s out-of-pocket and internal costs and expenses incurred in connection with Borrower’s compliance with this Section 11.1 (including, without limitation, Borrower’s attorney’s fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that Borrower shall not be required to reimburse Lender for Lender’s costs and expenses in connection with this Section 11.
1. Notwithstanding the foregoing or anything herein Rating Agencies to the contrary, Borrower shall pay for any costs and expenses with respect to items which Borrower is otherwise required to deliver pursuant to the terms of the Loan Documents.extent customarily given in similar transactions;
Appears in 1 contract
Sources: Loan Agreement (Marriott Hotel Properties Ii Limited Partnership)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”.
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Operating Partnership Sponsor and Manager, (B) provide updated budgets relating to the Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, fraudulent conveyance, matters of Delaware or Maryland (as applicable) and federal bankruptcy law relating to limited liability companiescompanies and true sale or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property and Borrower and Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(viv) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest ratesrates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note.
(c) Borrower shall be responsible for any of Borrower’s out-of-pocket and internal All costs and expenses (including attorneys’ fees and expenses) incurred by Lender in connection with Borrower’s compliance complying with requests made under this Section 11.1 shall be paid by Lender. All costs and expenses (including, without limitation, Borrower’s attorney’s including attorneys’ fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that ) incurred by Borrower shall not be required to reimburse Lender for Lender’s costs and expenses in connection with Borrower’s complying with requests made under this Section 1111.1 shall be paid by Borrower.
1. Notwithstanding the foregoing or anything herein to the contrary, Borrower shall pay for any costs and expenses with respect to items which Borrower is otherwise required to deliver pursuant to the terms of the Loan Documents.
Appears in 1 contract
Securitization. (a) Borrower acknowledges and agrees that Lender shall have the right may, at its sole cost and expense other than as set forth in Section 11.1(g) hereof, (i) to sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any portion thereof as a whole loanof the Loan and the Loan Documents, (ii) to sell participation interests in the Loan or (iii) to securitize consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the Loan “Securities”) secured by or evidencing ownership interests in all or any portion thereof in a single asset securitization of the Loan and the Loan Documents or a pooled loan securitization. The transaction pool of assets that include the Loan and the Loan Documents (the transactions referred to in clauses (i), (ii) ), and (iii) above shall hereinafter be are each herein referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by LenderL▇▇▇▇▇, Borrower shall assist Lender in satisfying the customary market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation, to:
(i) provide (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Operating Partnership SPE Component Entity, Manager, the Management Agreements, the Property Documents, the Ground Leases, the PILOT Leases, the PILOT Documents and Managerany Tenant, (B) provide updated budgets relating to the Property and Property, (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) provide new and/or updated opinions of counsel, which may be relied upon by LenderL▇▇▇▇▇, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(viv) execute such amendments to the Loan Documents Documents, the Property Documents, and Borrower B▇▇▇▇▇▇▇’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization any Secondary Market Transaction, including, without limitation, bifurcation (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two (I) one or more components participations or (II) one or more component and/or additional separate notes and/or creating a additional senior/subordinate note structure structure(s) and reallocating the principal amount of the Loan and the Spread among such components and/or notes evidencing the Loan (any of the foregoing, a “Loan Bifurcation”)) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would require amortization of the Loan, change the interest rate, weighted average Spread or the stated maturity (except as provided in subclause (C) above) (it being agreed that that the weighted average Spread may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan in excess of the Free Prepayment Amount and (y) any applications to principal during the continuance of an Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or the reallocation shall require any amortization of principal set forth the Loan, (iii) there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the Noteform of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any amendment which increases Borrower’s or Guarantor’s liability under the Loan Documents in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, except in connection with a Loan Bifurcation which may result in varying fixed interest rates, but which shall have at all times the same weighted average coupon Interest Rate of all components of the original NoteLoan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any prepayment of the Loan in excess of the Free Prepayment Amount and (y) any applications to principal during the continuance of an Event of Default.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (without duplication and to the extent not previously provided) (i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be responsible included, as applicable, in the Securitization, or (ii) the financial statements required under Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization. Such financial data or financial statements shall be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for which a filing pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) is not required. If requested by L▇▇▇▇▇, Borrower shall furnish to Lender financial data and/or financial statements for any tenant of the Property (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(d) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section shall be audited by Deloitte, Ernst & Young, RSM McGladrey, B▇▇▇▇ N▇▇▇▇▇ N▇▇▇▇, PwC or other independent certified public accountant reasonably approved by Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All financial data and statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by L▇▇▇▇▇, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or other legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender, in each case, to the extent reasonably available to Borrower.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements as Lender determines to be necessary or appropriate for such compliance, in each case, to the extent reasonably available to Borrower.
(g) All reasonable out-of-pocket and internal third-party costs and expenses incurred by B▇▇▇▇▇▇▇ and Guarantor in connection with Borrower’s compliance with requests made under this Section 11.1 Article 11 (includingincluding any documentary stamp, without limitation, Borrower’s attorney’s intangible or other mortgage taxes) and any fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that Borrower shall not be required to reimburse Lender for Lender’s costs and expenses the Rating Agencies incurred in connection with this Section 11.
1a syndication and/or Securitization of the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. Notwithstanding the foregoing or anything herein to the contraryIn addition, Borrower and Guarantor shall pay be responsible for any costs the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to items which Borrower is otherwise required to deliver requests made pursuant to the terms of the Loan DocumentsSection 11.1, Section 11.2, and Section 11.6.
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Securitization. (a) Borrower acknowledges and agrees that Administrative Agent and Lender shall have the right may, at its sole cost and expense other than as set forth in Section 11.1(g) hereof, (i) to sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any portion thereof as a whole loanof the Loan and the Loan Documents, (ii) to sell participation interests in the Loan Loan, or (iii) to securitize consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the Loan “Securities”) secured by or evidencing ownership interests in all or any portion thereof in a single asset securitization of the Loan and the Loan Documents or a pooled loan securitization. The transaction pool of assets that include the Loan and the Loan Documents (the transactions referred to in clauses (i), (ii) ), and (iii) above shall hereinafter be are each herein referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Administrative Agent or Lender, Borrower shall assist Lender Administrative Agent and Lender, as applicable, in satisfying the customary market standards to which Lender Administrative Agent and Lender, as applicable, customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation, to:
(i) provide (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Mezzanine Borrower, Guarantor, Operating Partnership SPE Component Entity, Mezzanine SPE Component Entity, Manager, the Management Agreements, the Property Documents, the Ground Leases, the PILOT Leases, the PILOT Documents and Managerany Tenant, (B) provide updated budgets relating to the Property and Property, (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel acceptable to Administrative Agent and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender Administrative Agent and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Administrative Agent, Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender Administrative Agent and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(viv) execute such amendments to the Loan Documents Documents, Mezzanine Loan Documents, the Property Documents, and Borrower B▇▇▇▇▇▇▇’s, Mezzanine Borrower’s, any SPE Component Entity’s or any Mezzanine SPE Component Entity’s organizational documents as may be reasonably requested by Administrative Agent or Lender or requested by the Rating Agencies or otherwise to effect the Securitization any Secondary Market Transaction, including, without limitation, bifurcation (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two (I) one or more components participations or (II) one or more component and/or additional separate notes and/or creating a additional senior/subordinate note structure structure(s) and reallocating the principal amount of the Loan and the Spread among such components and/or notes evidencing the Loan (any of the foregoing, a “Loan Bifurcation”)) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would require amortization of the Loan, change the interest rate, weighted average Spread or the stated maturity (except as provided in subclause (C) above) (it being agreed that that the weighted average Spread may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan and (y) any applications to principal during the continuance of an Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or the reallocation shall require any amortization of principal set forth the Loan, (iii) there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the Noteform of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any amendment which increases Borrower’s or Guarantor’s liability under the Loan Documents in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, except in connection with a Loan Bifurcation which may result in varying fixed interest rates, but which shall have at all times the same weighted average coupon Interest Rate of all components of the original NoteLoan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan and (y) any applications to principal during the continuance of an Event of Default.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Administrative Agent expects that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Administrative Agent upon request (without duplication and to the extent not previously provided) (i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB, if Administrative Agent expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be responsible included, as applicable, in the Securitization, or (ii) the financial statements required under Item 1112(b)(2) of Regulation AB, if Administrative Agent expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization. Such financial data or financial statements shall be furnished to Administrative Agent (A) within ten (10) Business Days after notice from Administrative Agent in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for which a filing pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) is not required. If requested by Administrative Agent, B▇▇▇▇▇▇▇ shall furnish to Administrative Agent financial data and/or financial statements for any tenant of the Property (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Administrative Agent expects there to be, with respect to such tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(d) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section shall be audited by Deloitte, Ernst & Y▇▇▇▇, RSM McGladrey, B▇▇▇▇ N▇▇▇▇▇ N▇▇▇▇, PwC or other independent certified public accountant reasonably approved by Administrative Agent in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Administrative Agent, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All financial data and statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by Administrative Agent or Lender, Borrower shall provide Administrative Agent, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Administrative Agent shall determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or other legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Administrative Agent, in each case, to the extent reasonably available to Borrower.
(f) In the event Administrative Agent determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of this Section, Administrative Agent may request, and Borrower shall promptly provide, such other financial data and financial statements as Administrative Agent determines to be necessary or appropriate for such compliance, in each case, to the extent reasonably available to Borrower.
(g) All reasonable out-of-pocket and internal third-party costs and expenses incurred by B▇▇▇▇▇▇▇ and Guarantor in connection with Borrower’s compliance with requests made under this Section 11.1 Article 11 (includingincluding any documentary stamp, without limitation, Borrower’s attorney’s intangible or other mortgage taxes) and any fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that Borrower shall not be required to reimburse Lender for Lender’s costs and expenses the Rating Agencies incurred in connection with this Section 11.
1a syndication and/or Securitization of the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. Notwithstanding the foregoing or anything herein to the contraryIn addition, Borrower and Guarantor shall pay be responsible for any costs the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to items which Borrower is otherwise required to deliver requests made pursuant to the terms of the Loan DocumentsSection 11.1, Section 11.2, and Section 11.6.
Appears in 1 contract
Sources: Loan Agreement (Industrial Logistics Properties Trust)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transaction transactions referred to in clauses (i), (ii) and (iii) above shall are each hereinafter be referred to collectively as a “Secondary Market TransactionsTransaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower shall assist or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in satisfying order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including, without limitation, including to:
(i) (A) provide updated financial and other information with respect to the PropertyProperties, the business operated at the PropertyProperties, Borrower, GuarantorSponsor and the Manager, Operating Partnership and Managerincluding, without limitation, the information set forth on Exhibit C attached hereto, (B) provide updated budgets relating to the Property Properties, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property Properties (the “Updated Information”), together, if customary, ) which were obtained in connection with appropriate verification the origination of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating AgenciesLoan;
(ii) provide opinions reliance to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers) on (A) each Insolvency Opinion, and (B) each opinion of Borrower’s and Guarantor’s New York and Delaware counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to matters of Delaware law relating to limited liability companies, which counsel and opinions shall be or otherwise reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated(A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction, Transaction (except to the extent that any such representations and warranties are made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the Loan Documents extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may reasonably customarily require;; and
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(v) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s the Loan Parties’ organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”)Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would change (A) cause the initial weighted average of the interest rate, the stated maturity or the amortization of principal set forth rates for all Components in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates, but which shall have aggregate immediately after the same effective date of such modification to exceed the weighted average coupon interest rate of the original NoteComponents in the aggregate immediately prior to such modification or alter the basis for any interest rate or convert such interest rate to a fixed rate, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be responsible included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of Borrower’s out-of-pocket and internal costs and expenses incurred the Properties if, in connection with Borrower’s compliance a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with this Section 11.1 (including, without limitation, Borrower’s attorney’s fees and expenses), subject respect to an aggregate cap on such costs and expenses Tenant or group of $10,000.00, and provided Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall not be required furnish to reimburse Lender for Lender’s costs and expenses , in connection with this Section 11the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
1. Notwithstanding (e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the foregoing Properties alone or anything herein the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the contraryrequirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender in connection with a Securitization, Borrower shall pay for provide Lender, within a reasonable period of time following Lender’s request therefor, with any costs and expenses with respect other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to items which Borrower is otherwise be required to deliver pursuant to the terms of the Loan DocumentsRegulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization.
Appears in 1 contract
Sources: Loan Agreement (American Residential Properties, Inc.)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan Loan, or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. (The transaction transactions referred to in clauses (i), (ii) and (iii) above shall are each hereinafter be referred to collectively as a “Secondary Market TransactionsTransaction” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization Secondary Market Transaction are hereinafter referred to as “Securities”). At Lender’s election, each note and/or component comprising the Loan may be subject to one or more Secondary Market Transactions.
(b) If requested by Lender, the Loan Parties shall use reasonable efforts to provide information in the possession or control of Borrower shall assist or its Affiliates, attorneys, accountants or other agents or which may be reasonably required by Lender in satisfying order to satisfy the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or marketplace, by prospective investors, the Rating Agencies Agencies, applicable Legal Requirements and/or otherwise in the marketplace in connection with any Secondary Market Transactions, including, without limitation, including to:
(i) (A) provide updated financial and other information with respect to the PropertyProperties, the business operated at the PropertyProperties, Borrower, GuarantorSponsor and the Manager, Operating Partnership and Managerincluding, without limitation, the information set forth on Exhibit C attached hereto, (B) provide updated budgets relating to the Property Properties, and (C) provide updated appraisals, market studies, environmental reviews and reports (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property Properties (the “Updated Information”), together, if customary, ) which were obtained in connection with appropriate verification the origination of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating AgenciesLoan;
(ii) provide (A) an updated Insolvency Opinion, and (B) updated opinions of Borrower’s and Guarantor’s New York and Delaware counsel, which may be relied upon by Lender, substantially the Rating Agencies and their respective counsel, agents and representatives, same as to matters those delivered as of Delaware law relating to limited liability companiesthe Closing Date, which counsel and opinions shall be addressed, for purposes or reliance thereon, to each Person acquiring any interest in the Loan in connection with any Secondary Market Transaction (including, without limitation, any “B Note” purchasers), or otherwise reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated(A) confirm that as of the closing date of any Secondary Market Transaction, the representations and warranties as set forth in the Loan Documents are true, complete and correct in all material respects as of the closing date of the Secondary Market Transaction, Transaction (except to the extent that any such representations and warranties are and can only be made as of a specific date and the facts and circumstances upon which such representation and warranty is based are specific solely to a certain date in which case confirmation as to truth, completeness and correctness shall be provided as of such specific date or to the Loan Documents extent such representations are no longer true and correct as a result of subsequent events in which case Borrower shall provide an updated representation or warranty) and (B) make such additional representations and warranties as the Rating Agencies may reasonably customarily require;; and
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(v) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s the Loan Parties’ organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”)Lender; provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would change (A) cause the initial weighted average of the interest rate, the stated maturity or the amortization of principal set forth rates for all Components in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates, but which shall have aggregate immediately after the same effective date of such modification to exceed the weighted average coupon interest rate of the original NoteComponents in the aggregate immediately prior to such modification, (B) cause the outstanding principal balance of all Components in the aggregate immediately after the effective date of such modification to exceed the outstanding principal balance of all Components in the aggregate immediately prior to such modification, (C) require Borrower to make or remake any representations or warranties, (D) require principal amortization of the Loan (other than repayment in full on the Maturity Date and the payment of the Monthly Amortization Amount), (E) change any Stated Maturity Date or (F) otherwise increase the obligations or reduce the rights of Borrower or Guarantor under the Loan Documents.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender reasonably determines that Borrower alone or Borrower and one or more Affiliates of Borrower (including any guarantor or other Person that is directly or indirectly committed by contract or otherwise to make payments on all or a part of the Loan) collectively, or the Properties alone or the Properties and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request the following financial information:
(i) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be responsible included in the Securitization, net operating income for the Properties and the Related Properties for the most recent Fiscal Year and interim period as required under Item 1112(b)(1) of Regulation AB (or, if the Loan is not treated as a non-recourse loan under Instruction 3 for Item 1101(k) of Regulation AB, selected financial data meeting the requirements and covering the time periods specified in Item 301 of Regulation S-K and Item 1112(b)(1) of Regulation AB), or
(ii) if Lender reasonably determines that the principal amount of the Loan together with any Related Loans, as of the cut-off date for such Securitization, may equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included in the Securitization, the financial statements required under Item 1112(b)(2) of Regulation AB (which includes, but may not be limited to, a balance sheet with respect to the entity that Lender determines to be a Significant Obligor for the two most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-01 of Regulation S-X, and statements of income and statements of cash flows with respect to the Properties for the three most recent Fiscal Years and applicable interim periods, meeting the requirements of Rule 3-02 of Regulation S-X (or if Lender determines that the Properties is the Significant Obligor and the Properties (other than properties that are hotels, nursing homes, or other properties that would be deemed to constitute a business and not real estate under Regulation S-X or other legal requirements) was acquired from an unaffiliated third party and the other conditions set forth in Rule 3-14 of Regulation S-X have been met, the financial statements required by Rule 3-14 of Regulation S-X)).
(d) Further, if requested by Lender, Borrower shall, promptly upon Lender’s request, furnish to Lender financial data or financial statements meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, for any Tenant of Borrower’s out-of-pocket and internal costs and expenses incurred the Properties if, in connection with Borrower’s compliance a Securitization, Lender reasonably determines there to be, as of the cutoff date for such Securitization, a concentration with this Section 11.1 (including, without limitation, Borrower’s attorney’s fees and expenses), subject respect to an aggregate cap on such costs and expenses Tenant or group of $10,000.00, and provided Affiliated Tenants within all of the mortgage loans included or expected to be included in the Securitization such that such Tenant or group of Affiliated Tenants would constitute a Significant Obligor. Borrower shall not be required furnish to reimburse Lender for Lender’s costs and expenses , in connection with this Section 11the preparation of the Disclosure Documents and on an ongoing basis, financial data and/or financial statements with respect to such Tenants meeting the requirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) filings pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
1. Notwithstanding (e) If Lender determines that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the foregoing Properties alone or anything herein the Properties and Related Properties collectively, are a Significant Obligor, then Borrower shall furnish to Lender, on an ongoing basis, selected financial data or financial statements meeting the contraryrequirements of Item 1112(b)(1) or (2) of Regulation AB, as specified by Lender, but only for so long as such entity or entities are a Significant Obligor and either (x) Exchange Act Filings are required to be made under applicable Legal Requirements or (y) comparable information is required to otherwise be “available” to holders of the Securities under Regulation AB or applicable Legal Requirements.
(f) If reasonably requested by Lender, Borrower shall pay for provide Lender, within a reasonable period of time following Lender’s request therefor, with any costs and expenses with respect other or additional financial statements, or financial, statistical or operating information, as Lender shall reasonably determine to items which Borrower is otherwise be required to deliver pursuant to the terms of the Loan DocumentsRegulation S-K or Regulation S-X, as applicable, Regulation AB, or any amendment, modification or replacement thereto or other Legal Requirements relating to a Securitization or as shall otherwise be reasonably requested by Lender.
Appears in 1 contract
Securitization. (a) Borrower acknowledges and agrees that Lender shall have the right may, at its sole cost and expense other than as set forth in Section 11.1(g) hereof, (i) to sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any portion thereof as a whole loanof the Loan and the Loan Documents, (ii) to sell participation interests in the Loan or (iii) to securitize consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the Loan “Securities”) secured by or evidencing ownership interests in all or any portion thereof in a single asset securitization of the Loan and the Loan Documents or a pooled loan securitization. The transaction pool of assets that include the Loan and the Loan Documents (the transactions referred to in clauses (i), (ii) ), and (iii) above shall hereinafter be are each herein referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender▇▇▇▇▇▇, Borrower shall assist Lender in satisfying the customary market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation, to:
(i) provide or cause Mortgage Borrower to provide (A) provide updated financial and other information with respect to the Collateral, the Mezzanine A Collateral, the Property, the business operated at the Property, Borrower, Mortgage Borrower, Mezzanine A Borrower, Guarantor, Operating Partnership any SPE Component Entity, any Mortgage SPE Component Entity, any Mezzanine A SPE Component Entity, Manager, the Management Agreements, the Property Documents, the PILOT Leases, the PILOT Documents and Managerany Tenant, (B) provide updated budgets relating to the Property and Property, (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, the Mezzanine A Collateral, the Collateral, Property Documents, Borrower, Mortgage Borrower, Mezzanine A Borrower and each of their respective Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(viv) execute such amendments to the Loan Documents Documents, Mortgage Loan Documents, Mezzanine A Loan Documents, the Property Documents, and Borrower Borrower’s, Mortgage Borrower’s, Mezzanine A Borrower’s, any SPE Component Entity’s, any Mortgage SPE Component Entity’s or any Mezzanine A SPE Component Entity’s organizational documents as may be reasonably requested by Lender ▇▇▇▇▇▇ or requested by the Rating Agencies or otherwise to effect the Securitization any Secondary Market Transaction, including, without limitation, bifurcation (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two (I) one or more components participations or (II) one or more component and/or additional separate notes and/or creating a additional senior/subordinate note structure structure(s) and reallocating the principal amount of the Loan and the Spread among such components and/or notes evidencing the Loan, the Mortgage Loan and/or the Mezzanine A Loan (any of the foregoing, a “Loan Bifurcation”)) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would require amortization of the Loan, change the interest rate, weighted average Spread or the stated maturity (except as provided in subclause (C) above) (it being agreed that that the weighted average Spread may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan, Mortgage Loan and Mezzanine A Loan and (y) any applications to principal during the continuance of an Event of Default, a Mortgage Loan Event of Default or a Mezzanine A Loan Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or reallocation shall require any amortization of principal set forth the Loan, (iii) there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the Noteform of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any amendment which increases Borrower’s or Guarantor’s liability under the Loan Documents in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, except in connection with a Loan Bifurcation which may result in varying fixed interest rates, but which shall have at all times the same weighted average coupon Interest Rate of all components of the original NoteLoan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any prepayment of the Loan and (y) any applications to principal during the continuance of an Event of Default.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower collectively or the Collateral and Related Collateral collectively, or the Property or Collateral alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (without duplication and to the extent not previously provided) (i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be responsible included, as applicable, in the Securitization, or (ii) the financial statements required under Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization. Such financial data or financial statements shall be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for which a filing pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) is not required. If requested by ▇▇▇▇▇▇, Borrower shall furnish to Lender financial data and/or financial statements for any tenant of the Property (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(d) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section shall be audited by Deloitte, Ernst & Young, RSM McGladrey, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, PwC or other independent certified public accountant reasonably approved by Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All financial data and statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by ▇▇▇▇▇▇, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or other legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender, in each case, to the extent reasonably available to Borrower.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements as Lender determines to be necessary or appropriate for such compliance, in each case, to the extent reasonably available to Borrower.
(g) All reasonable out-of-pocket and internal third-party costs and expenses incurred by ▇▇▇▇▇▇▇▇ and Guarantor in connection with Borrower’s compliance with requests made under this Section 11.1 Article 11 (includingincluding any documentary stamp, without limitation, Borrower’s attorney’s intangible or other mortgage taxes) and any fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that Borrower shall not be required to reimburse Lender for Lender’s costs and expenses the Rating Agencies incurred in connection with this Section 11.
1a syndication and/or Securitization of the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. Notwithstanding the foregoing or anything herein to the contraryIn addition, Borrower and Guarantor shall pay be responsible for any costs the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to items which Borrower is otherwise required to deliver requests made pursuant to the terms of the Loan DocumentsSection 11.1, Section 11.2, and Section 11.6.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Securitization. MHP and the General Partner shall use -------------- commercially reasonable best efforts to cooperate with NACC in its activities in connection with the sale of the MHP Loan as a whole loan or any securitization of the MHP Loan (the "Securitization"), including obtaining ratings by the -------------- Rating Agencies. The Securitization will involve the issuance of rated single- or multi-class securities secured by or evidencing ownership interests in the Transaction Documents (the "Securities"). Such cooperation shall include, ---------- without limitation, the obligation to:
(a) Lender shall have maintain the right (i) ownership of the MHP Properties in an entity that permits it to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in comply with its obligations under clauses (i), (iix) and (iiiz) above shall hereinafter be referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”.of Section 5.2;
(b) If to the extent permitted under MHP's Second Amended and Restated Agreement of Limited Partnership without the consent of its limited partners, in the case of MHP, structure and maintain its organizational, operational and financial affairs and the affairs of the General Partner (collectively, the "Entities") to enable its counsel to render a reasoned opinion if requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by -------- the Rating Agencies in connection form and substance customary or required for rating the Securities (the "Substantive Consolidation Opinion") that upon a petition for --------------------------------- bankruptcy under the United States Bankruptcy Code, neither Host Marriott as a debtor in possession nor its bankruptcy trustees nor creditors should cause a court to order the substantive consolidation of MHP's assets and liabilities or those of the General Partner with any Secondary Market Transactionsthose of Host Marriott, including, without limitation, to:which counsel and which opinion shall be satisfactory to NACC and the Rating Agencies;
(i) (Ac) provide updated such financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Operating Partnership it and Manager, (B) provide updated budgets relating to the Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations each of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which MHP Properties as may be relied upon requested by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to matters of Delaware law relating to limited liability companies, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(v) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization NACC, including, without limitation, bifurcation audits or agreed-upon procedures of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure operating cash flow and Net Operating Income on an individual and aggregate MHP Property basis, occupancy statistics, and average rents and quarterly and annual financial statements for each MHP Property (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity or the amortization of principal set forth reviewed and in the Note, except in connection with case of annual financial statements audited) by a Loan Bifurcation which may result in varying fixed interest rates, but which shall have firm of certified public accountants acceptable to NACC and the same weighted average coupon of the original Note.
(c) Borrower shall be responsible for any of Borrower’s out-of-pocket and internal costs and expenses incurred in connection with Borrower’s compliance with this Section 11.1 (including, without limitation, Borrower’s attorney’s fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that Borrower shall not be required to reimburse Lender for Lender’s costs and expenses in connection with this Section 11.
1. Notwithstanding the foregoing or anything herein Rating Agencies to the contrary, Borrower shall pay for any costs and expenses with respect to items which Borrower is otherwise required to deliver pursuant to the terms of the Loan Documents.extent customarily given in similar transactions;
Appears in 1 contract
Sources: Loan Agreement (Marriott Hotel Properties Ii Limited Partnership)
Securitization. The Borrower and the General Partner shall -------------- use commercially reasonable best efforts to cooperate with NACC in its activities in connection with the sale of the Loan as a whole loan or any securitization of the Loan (the "Securitization"), including obtaining ratings -------------- by the Rating Agencies. The Securitization will involve the issuance of rated single- or multi-class securities secured by or evidencing ownership interests in the Transaction Documents (the "Securities"). Such cooperation shall ---------- include, without limitation, the obligation to:
(a) Lender shall have maintain the right (i) ownership of the Properties in an entity that permits the Borrower to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in comply with its obligations under clauses (i), (iix) and (iiiz) above shall hereinafter be referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”.of Section 5.2;
(b) If to the extent permitted under its existing partnership agreement without the consent of its limited partners, structure and maintain the organizational, operational and financial affairs of the Borrower and the General Partner, (collectively, the "Entities") to enable its counsel to render -------- a reasoned opinion if requested by Lenderthe Rating Agencies in form and substance customary or required for rating the Securities (the "Substantive Consolidation ------------------------- Opinion") that upon a petition for bankruptcy by or against Host Marriott (or ------- the General Partner) under the United States Bankruptcy Code, neither Host Marriott as a debtor in possession nor its bankruptcy trustees nor creditors nor any other party in interest would have sufficient basis to cause a court to order the substantive consolidation of the assets and liabilities of the General Partner or the Borrower in the case of a Host Marriott bankruptcy, or of the Borrower, in the case of a General Partner bankruptcy, with those of the debtor in bankruptcy, which counsel and which opinion shall assist Lender in satisfying be satisfactory to NACC and the market standards Rating Agencies;
(c) provide such financial and other information with respect to which Lender customarily adheres each Property, the Borrower, and, if such information is reasonably available to the Borrower, the Manager, as may be requested by the Rating Agencies or which as may be reasonably required requested by NACC, including, without limitation, audits or agreed- upon procedures of operating cash flow and Net Operating Income on an individual and aggregate Property basis, occupancy statistics, and average rents and quarterly and annual financial statements for each Property (reviewed and in the marketplace case of annual financial statements audited) by a firm of certified public accountants acceptable to NACC and the Rating Agencies to the extent customarily given in similar transactions;
(d) prepare and deliver such agreements and instruments relating to the Note, the Securities, the Properties and the Entities, including (A) agreements to indemnify the Rating Agencies, NACC and any servicer or trustee, to the extent customarily given in commercial mortgage-backed securities transactions, and (B) amendments of any of the Transaction Documents that are necessary to effect the Securitization, in form and scope satisfactory to the Rating Agencies and reasonably satisfactory to NACC;
(e) perform or permit to be performed such appraisals, surveys, site inspections, market studies, current environmental reviews and reports (Phase I's, including, without limitation, testing for asbestos, lead paint or radon gas and Phase II's and other environmental investigations recommended by environmental consultants), structural engineering reports (which shall include an analysis of requirements for deferred maintenance and ongoing capital expenditure and furniture, fixtures and equipment reserve requirements), reviews of property, casualty, business interruption, earthquake, flood, liability and title insurance and other due diligence items customarily requested by nationally recognized underwriters in connection with the origination and securitization of comparably sized commercial real estate loans or by the Rating Agencies in connection with any Secondary Market Transactionsrating the Loan or the Securities; provided, including-------- however, without limitation, to:NACC shall use its best efforts to limit the circumstances under which ------- the Borrower or the General Partner will be required to duplicate its efforts or third party costs in complying with its obligations under this clause (e);
(i) (Af) provide updated financial business plans and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Operating Partnership and Manager, (B) provide updated budgets relating to the Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and Properties as may be requested by the Rating Agencies;
(iig) provide cause counsel to render opinions of counsel(which may be reasoned opinions) with respect to the Properties, the Entities, and the Transaction Documents as to bankruptcy remoteness and other matters customary in securitization transactions, which may be relied upon requested by Lender, 50 the Rating Agencies in form and substance customary or required for Rating the Securities which counsel and which opinion shall be satisfactory to the Rating Agencies and their respective counsel, agents and representatives, as to matters of Delaware law relating to limited liability companies, which counsel and opinions shall be reasonably satisfactory to NACC; provided, however, that if the -------- ------- Rating Agencies request opinions subsequent to the Closing Date in form connection with the Securitization that are materially different from the opinions delivered on the Closing Date, the Lender shall bear the fees and substance to Lender and the Rating Agenciesexpenses incurred by counsel in rendering such opinions;
(iiih) provide updatedmake such representations and warranties with respect to the Properties, the Entities, and the Transaction Documents as of are customary in securitization transactions and as may be requested by the closing Rating Agencies and reasonably requested by NACC and consistent with the facts covered by such representations and warranties as they exist on the date of thereof, including the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as Transaction Documents;
(i) cooperate with the Lender in providing to the Rating Agencies may reasonably requiresuch information as is customarily provided in connection with annual reviews conducted in commercial mortgage backed securities transactions similar to the Securitization;
(ivj) provide such informationcooperate with NACC in the preparation, documents at NACC's cost, of a private placement memorandum, prospectus, prospectus supplement or other disclosure document to be used by NSI or any of its Affiliates to privately place or publicly distribute the Loan as a whole loan or the Securities in a manner and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transactionextent that the same satisfy the requirements of the Securities Act and applicable state securities laws; and
(vk) execute such amendments subject to the Loan Documents provisions of Section 5.6(B), permit NACC to provide to the Rating Agencies, potential investors in the Securities and Borrower or any SPE Component Entity’s organizational documents others as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise required to effect the Securitization including, without limitation, bifurcation or the sale of the Loan into two or more components and/or separate notes and/or creating as a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would change the interest ratewhole loan, the stated maturity or information provided to NACC by the amortization of principal set forth in Borrower and the Note, except Manager and their respective Affiliates in connection with a Loan Bifurcation which may result in varying fixed interest ratesthe transactions contemplated by this Agreement. Any and all due diligence materials (including without limitation appraisals, but which shall have the same weighted average coupon of the original Note.
(cengineering reports and environmental reports) Borrower shall be responsible for any addressed to and shall run to the benefit of NACC and its successors and assigns, the Rating Agencies and the Borrower’s out-of-pocket and internal costs and expenses incurred in connection with Borrower’s compliance with this Section 11.1 (including, without limitation, Borrower’s attorney’s fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that Borrower shall not be required to reimburse Lender for Lender’s costs shall, upon delivery, become the property of NACC, its successors and expenses in connection with this Section 11assigns and the Borrower.
1. Notwithstanding the foregoing or anything herein to the contrary, Borrower shall pay for any costs and expenses with respect to items which Borrower is otherwise required to deliver pursuant to the terms of the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Fairfield Inn by Marriott LTD Partnership)
Securitization. (a1) Lender shall have the right (i) to sell or otherwise transfer the Loan (or any portion thereof as a whole loanand/or interest therein), (ii) to sell participation interests in the Loan (or any portion thereof and/or interest therein) or (iii) to securitize the Loan (or any portion thereof and/or interest therein) in a single asset securitization or a pooled loan asset securitization. The transaction transactions referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “"Secondary Market Transactions” " and the transactions referred to in clause (iii) shall hereinafter be referred to as a “"Securitization”". Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “"Securities”".
(b2) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation, to:
(ia) provide (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Operating Partnership Sponsor, SPE Component Entity and Manager, (B) provide updated budgets relating to the Property and Property, (C) provide updated appraisals, market studies, environmental reviews (Phase I’s 's and, if appropriate, Phase II’s's), property condition reports and other due diligence investigations of the Property (the “"Updated Information”"), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies and (D) revisions to and other agreements with respect to the Property Documents in form and substance acceptable to Lender and the Rating Agencies;
(iib) provide new and/or updated opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, Property Documents, Borrower and Borrower's Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iiic) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(vd) execute such amendments to the Loan Documents, the Property Documents and Borrower Borrower's or any SPE Component Entity’s 's organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization any Secondary Market Transaction, including, without limitation, bifurcation (A) to amend and/or supplement the Independent Director provisions provided herein and therein, in LOAN AGREEMENT – Page 103 41458-110/JANAF Shopping Yard (VA) each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two or more components and/or additional separate notes and/or creating a additional senior/subordinate note structure structure(s) (any of the foregoing, a “"Loan Bifurcation”)") and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity (except as provided in subclause (C) above) or the amortization of principal set forth in the Noteherein, except in connection with a Loan Bifurcation which may result in varying fixed interest ratesrates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note.
(c3) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be responsible included, as applicable, in the Securitization, or (ii) the financial statements required under Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of Borrower’s outthe cut-of-pocket off date for such Securitization and internal costs at any time during which the Loan and expenses incurred any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization. Such financial data or financial statements shall be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days after the end of each fiscal year of Borrower’s compliance with this Section 11.1 (including; provided, without limitationhowever, Borrower’s attorney’s fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that Borrower shall not be required obligated to reimburse Lender furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for Lender’s costs and expenses which a filing pursuant to the Exchange Act in connection with this Section 11.
1. Notwithstanding the foregoing or anything herein relating to the contrarySecuritization (an "Exchange Act Filing") is not required. If requested by Lender, Borrower shall pay furnish to Lender financial data and/or financial statements for any costs and expenses tenant of the Property (to the extent Borrower is in possession of such information or can reasonably obtain from such tenant) if, in connection with a Securitization, Lender expects there to be, with respect to items such tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(4) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation AB and other LOAN AGREEMENT – Page 104 41458-110/JANAF Shopping Yard (VA) applicable legal requirements. All financial statements referred to in this Section shall be audited by independent accountants of Borrower acceptable to Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which Borrower is otherwise report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as "experts" in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to deliver be provided. All financial data and statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer's Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(5) If requested by Lender, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or other legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender.
(6) In the terms event Lender determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of the Loan Documentsthis Section, Lender may reasonably request, and Borrower shall promptly provide, such other financial data and financial statements as Lender determines to be necessary or appropriate for such compliance.
Appears in 1 contract
Sources: Loan Agreement (Wheeler Real Estate Investment Trust, Inc.)
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”.
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, at Borrower’s cost and expense (such expense not to exceed $5,000 in the aggregate during the term of the Loan), including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Operating Partnership Sponsor and Manager, (B) provide updated budgets relating to the Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to matters of Delaware and federal bankruptcy law relating to limited liability companiescompanies or any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property and Borrower and Borrower’s Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(viv) execute such amendments to the Loan Documents and Borrower Borrower’s or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest ratesrates and amortization schedules, but which shall have the same initial weighted average coupon of the original Note.
(c) Upon request, Borrower shall furnish to Lender from time to time such financial data and financial statements as Lender determines to be responsible necessary, advisable or appropriate for complying with any of Borrower’s out-of-pocket and internal costs and expenses incurred in connection with Borrower’s compliance with this Section 11.1 Applicable Law (including those applicable to Lender or any Servicer (including, without limitation, Borrower’s attorney’s fees limitation and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that Borrower shall not be required to reimburse Lender for Lender’s costs and expenses in connection with this Section 11.
1. Notwithstanding the foregoing or anything herein to the contraryextent applicable, Borrower shall pay for any costs and expenses Regulation AB)) within the timeframes necessary, advisable or appropriate in order to comply with respect to items which Borrower is otherwise required to deliver pursuant to the terms of the Loan Documentssuch Applicable Law.
Appears in 1 contract
Securitization. (a) Borrower acknowledges and agrees that Lender shall have the right may, at its sole cost and expense other than as set forth in Section 11.1(g) hereof, (i) to sell or otherwise transfer the Loan as a whole loan or sell or otherwise transfer or syndicate all or any portion thereof as a whole loanof the Loan and the Loan Documents, (ii) to sell participation interests in the Loan or (iii) to securitize consummate one or more private or public securitizations of rated or unrated single-class or multi-class securities (the Loan “Securities”) secured by or evidencing ownership interests in all or any portion thereof in a single asset securitization of the Loan and the Loan Documents or a pooled loan securitization. The transaction pool of assets that include the Loan and the Loan Documents (the transactions referred to in clauses (i), (ii) ), and (iii) above shall hereinafter be are each herein referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”).
(b) If requested by Lender▇▇▇▇▇▇, Borrower shall assist Lender in satisfying the customary market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation, to:
(i) provide or cause Mortgage Borrower to provide (A) provide updated financial and other information with respect to the Collateral, the Property, the business operated at the Property, Borrower, Mortgage Borrower, Mezzanine B Borrower, Guarantor, Operating Partnership any SPE Component Entity, any Mortgage SPE Component Entity, any Mezzanine B SPE Component Entity, Manager, the Management Agreements, the Property Documents, the PILOT Leases, the PILOT Documents and Managerany Tenant, (B) provide updated budgets relating to the Property and Property, (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies and (D) to the extent that the agreement or consent of any relevant third-parties can reasonably be obtained, as applicable, revisions to and other agreements with respect to the Property Documents in form and substance reasonably acceptable to Lender and acceptable to the Rating Agencies; provided that Borrower shall not be required to provide additional information regarding the identity of any indirect investors in Borrower (or their respective Affiliates);
(ii) provide new and/or updated opinions of counsel, which may be relied upon by Lender▇▇▇▇▇▇, the Rating Agencies and their respective counsel, agents and representatives, as to substantive non-consolidation, fraudulent conveyance, matters of Delaware and federal bankruptcy law relating to limited liability companies, true sale, true lease and any other opinion customary in Secondary Market Transactions or required by the Rating Agencies with respect to the Property, the Collateral, Property Documents, Borrower, Mortgage Borrower, Mezzanine B Borrower and each of their respective Affiliates, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and satisfactory in form and substance to the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(viv) execute such amendments to the Loan Documents Documents, Mortgage Loan Documents, Mezzanine B Loan Documents, the Property Documents, and Borrower Borrower’s, Mortgage Borrower’s, Mezzanine B Borrower’s, any SPE Component Entity’s, any Mortgage SPE Component Entity’s or any Mezzanine B SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization any Secondary Market Transaction, including, without limitation, bifurcation (A) amend and/or supplement the Independent Director provisions provided herein and therein, in each case, in accordance with the applicable requirements of the Rating Agencies, (B) bifurcating the Loan into two (I) one or more components participations or (II) one or more component and/or additional separate notes and/or creating a additional senior/subordinate note structure structure(s) and reallocating the principal amount of the Loan and the Spread among such components and/or notes evidencing the Loan, the Mortgage Loan and/or the Mezzanine B Loan (any of the foregoing, a “Loan Bifurcation”)) and (C) to modify all operative dates (including but not limited to payment dates, interest period start dates and end dates, etc.) under the Loan Documents, by up to ten (10) days; provided, however, that (I) the outstanding principal amount of such participations, loans, components and/or notes shall equal the outstanding principal amount of the Loan immediately prior to the creation thereof and (II) Borrower shall not be required to so modify or amend any Loan Document if such modification or amendment would require amortization of the Loan, change the interest rate, weighted average Spread or the stated maturity (except as provided in subclause (C) above) (it being agreed that that the weighted average Spread may subsequently change as a result of (x) after a rated Securitization, any voluntary prepayment of the Loan, Mortgage Loan and Mezzanine B Loan and (y) any applications to principal during the continuance of an Event of Default, a Mortgage Loan Event of Default or a Mezzanine B Loan Event of Default; provided, further, that (i) the Stated Maturity Date shall not be affected and the time periods during which Borrower is permitted to perform its obligations under the Loan Documents shall not be decreased; (ii) no such bifurcation or reallocation shall require any amortization of principal set forth the Loan, (iii) there shall be no modification of the Loan Documents except to reflect the creation of such loans, participations, components or notes and the loan documents relating to such loans, components and/or notes shall be in substantially the Noteform of the Loan Documents and (iv) neither Borrower nor Guarantor shall be required to enter into any amendment which increases Borrower’s or Guarantor’s liability under the Loan Documents in any material respect or decreases Borrower’s or Guarantor’s rights under the Loan Documents in any material respect. For avoidance of doubt, except in connection with a Loan Bifurcation which may result in varying fixed interest rates, but which shall have at all times the same weighted average coupon Interest Rate of all components of the original NoteLoan shall equal the weighted average Interest Rate at Closing; provided, however, that the weighted average Interest Rate may subsequently change as a result of (x) after a rated Securitization, any prepayment of the Loan and (y) any applications to principal during the continuance of an Event of Default.
(c) If, at the time a Disclosure Document is being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower collectively or the Collateral and Related Collateral collectively, or the Property or Collateral alone or the Property and Related Properties collectively, will be a Significant Obligor, Borrower shall furnish to Lender upon request (without duplication and to the extent not previously provided) (i) the selected financial data or, if applicable, net operating income, required under Item 1112(b)(1) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be responsible included, as applicable, in the Securitization, or (ii) the financial statements required under Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization. Such financial data or financial statements shall be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for which a filing pursuant to the Exchange Act in connection with or relating to the Securitization (an “Exchange Act Filing”) is not required. If requested by ▇▇▇▇▇▇, Borrower shall furnish to Lender financial data and/or financial statements for any tenant of the Property (in Borrower’s possession or control and permitted to be disclosed) if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of Affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of Affiliated tenants would constitute a Significant Obligor.
(d) All financial data and statements provided by Borrower hereunder shall be prepared in accordance with GAAP and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in this Section shall be audited by Deloitte, Ernst & Young, RSM McGladrey, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, PwC or other independent certified public accountant reasonably approved by Lender in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all other applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All financial data and statements (audited or unaudited) provided by Borrower under this Section shall be accompanied by an Officer’s Certificate, which certification shall state that such financial statements meet the requirements set forth in the first sentence of this subsection (d).
(e) If requested by ▇▇▇▇▇▇, Borrower shall provide Lender, promptly upon request, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or other legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender, in each case, to the extent reasonably available to Borrower.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements required in order to comply with Regulation AB or any amendment, modification or replacement thereto or other legal requirements are other than as provided herein, then notwithstanding the provisions of this Section, Lender may request, and Borrower shall promptly provide, such other financial data and financial statements as Lender determines to be necessary or appropriate for such compliance, in each case, to the extent reasonably available to Borrower.
(g) All reasonable out-of-pocket and internal third-party costs and expenses incurred by ▇▇▇▇▇▇▇▇ and Guarantor in connection with Borrower’s compliance with requests made under this Section 11.1 Article 11 (includingincluding any documentary stamp, without limitation, Borrower’s attorney’s intangible or other mortgage taxes) and any fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that Borrower shall not be required to reimburse Lender for Lender’s costs and expenses the Rating Agencies incurred in connection with this Section 11.
1a syndication and/or Securitization of the Loan shall be paid by Borrower, including any AUP costs incurred before or after the Closing Date. Notwithstanding the foregoing or anything herein to the contraryIn addition, Borrower and Guarantor shall pay be responsible for any costs the payment of all of Borrower’s and Guarantor’s respective attorneys’ fees and expenses with respect to items which Borrower is otherwise required to deliver requests made pursuant to the terms of the Loan DocumentsSection 11.1, Section 11.2, and Section 11.6.
Appears in 1 contract
Sources: Mezzanine Loan Agreement (Industrial Logistics Properties Trust)
Securitization. (a) Manager shall use commercially reasonable efforts to cooperate with Lender shall have in its activities in connection with the right (i) to sell or otherwise transfer sale of the Loan or any portion thereof Loans as a whole loanloan or any securitization of the Loans (the "Securitization"), (ii) to sell participation including -------------- obtaining ratings of the Loans or the Securities by the Rating Agencies and annual rating reviews of the Loans or the Securities by the Rating Agencies. The Securitization will involve the issuance of rated single- or multi-class securities secured by or evidencing ownership interests in the Loan or Transaction Documents (iii) the "Securities"). Such cooperation shall include, without ---------- limitation, the obligation to securitize cooperate with Lender in providing to the Loan or any portion thereof in Rating Agencies such information as is customarily provided by a single asset securitization or property manager on behalf of a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued borrower in connection with a Securitization are hereinafter referred annual reviews conducted in commercial mortgage backed securities transactions similar to the Securitization, provided, however, that in no event shall Manager be required to cooperate in any request for Manager, Marriott or any Marriott Affiliate to be rated by any Rating Agency that, as “Securities”of the date hereof, does not rate Manager, Marriott, or any Marriott Affiliate.
(b) If requested by LenderLender shall indemnify, Borrower shall assist Lender in satisfying defend and hold Manager, Marriott and all Marriott Affiliates (and their respective directors, officers, shareholders, employees and agents) harmless from and against all loss, costs, liability and damage, including attorneys' fees and expenses, and the market standards costs of litigation related thereto (collectively "Losses") to which Lender customarily adheres any such persons may become ------ subject under the Securities Act of 1933, as amended, or which may be reasonably required otherwise, insofar as the Losses arise out of or are based upon any untrue statement of material fact contained in the marketplace offering documents used in the offering of the Securities or any other securities issued by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation, to:
(i) (A) provide updated financial and other information Lender with respect to the PropertyLoans or arise out of or are based upon the omission or alleged omission to state in such offering documents a material fact required to be stated therein or necessary to make the statements therein, the business operated at the Property, Borrower, Guarantor, Operating Partnership and Manager, (B) provide updated budgets relating to the Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations in light of the Property (the “Updated Information”)circumstances in which they were made, together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to matters of Delaware law relating to limited liability companies, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(v) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”)not misleading; provided, however, that Borrower the -------- ------- indemnification contained herein shall not be required to modify or amend any Loan Document operative if such modification untrue statement or amendment would change the interest rate, the stated maturity omission was made in reliance upon any information given by Manager to Borrower or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates, but which shall have the same weighted average coupon of the original NoteSanta ▇▇▇▇▇ Partnership.
(c) Borrower shall be responsible for any of Borrower’s out-of-pocket and internal costs and expenses incurred in connection with Borrower’s compliance with this Section 11.1 (including, without limitation, Borrower’s attorney’s fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that Borrower shall not be required to reimburse Lender for Lender’s costs and expenses in connection with this Section 11.
1. Notwithstanding the foregoing or anything herein to the contrary, Borrower shall pay for any costs and expenses with respect to items which Borrower is otherwise required to deliver pursuant to the terms of the Loan Documents.
Appears in 1 contract
Securitization. (a) Lender shall have the right (i) to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in clauses (i), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”.
(b) If requested by Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation, to:
(i) (A) provide updated financial and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Operating Partnership and Manager, (B) provide updated budgets relating to the Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s 's and, if appropriate, Phase II’s's), property condition reports and other due diligence investigations of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counsel, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representatives, as to non-consolidation, matters of Delaware law relating to limited liability companies, which counsel and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(v) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s 's organizational documents as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation of the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest ratesrates and, after the Anticipated Repayment Date, amortization schedules, but which shall have the same weighted average coupon of the original Note.
(c) If, at the time one or more Disclosure Documents are being prepared for a Securitization, Lender expects that Borrower alone or Borrower and one or more Affiliates of Borrower collectively, or the Property alone or the Property and Related Properties collectively, will be a Significant Obligor for purposes of such Securitization, Borrower shall furnish (or cause to be furnished) to Lender upon request (i) the selected financial data or, if applicable, net operating income, described in Item 1112(b)(1) of Regulation AB, if Lender expects that the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan (or portion of the Loan included in such Securitization) and any Related Loans are included in a Securitization does, equal or exceed ten percent (10%) (but less than twenty percent (20%)) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in such Securitization or (ii) the financial statements described in Item 1112(b)(2) of Regulation AB, if Lender expects that the principal amount of the Loan (or portion of the Loan included in such Securitization) together with any Related Loans as of the cut-off date for such Securitization may, or if the principal amount of the Loan together with any Related Loans as of the cut-off date for such Securitization and at any time during which the Loan (or apportion of the Loan included in such Securitization) and any Related Loans are included in a Securitization does, equal or exceed twenty percent (20%) of the aggregate principal amount of all mortgage loans included or expected to be included, as applicable, in the Securitization. Such financial data or financial statements shall be furnished to Lender (A) within ten (10) Business Days after notice from Lender in connection with the preparation of Disclosure Documents for the Securitization, (B) not later than thirty (30) days after the end of each fiscal quarter of Borrower and (C) not later than seventy-five (75) days after the end of each fiscal year of Borrower; provided, however, that Borrower shall not be obligated to furnish financial data or financial statements pursuant to clauses (B) or (C) of this sentence with respect to any period for which an Exchange Act Filing is not required. If requested by Lender, and to the extent not prohibited by any applicable lease, other agreement or order, Borrower shall use commercially reasonable efforts to furnish to Lender financial data and/or financial statements for any tenant of any of the Properties delivered to Borrower by such tenants, if, in connection with a Securitization, Lender expects there to be, with respect to such tenant or group of affiliated tenants, a concentration within all of the mortgage loans included or expected to be included, as applicable, in the Securitization such that such tenant or group of affiliated tenants would constitute a Significant Obligor. Notwithstanding anything in this Section 11.1 to the contrary, with respect to any financial data required under this Section 11.1 which relates to the period of time prior to Borrower's acquisition of the Property (i.e., the date hereof), to the extent such financial data is not in Borrower's possession, Borrower shall use commercially reasonable efforts to obtain such financial data from the applicable predecessor owners, or, if Borrower is unable to obtain such information despite using commercially reasonable efforts, then Borrower may provide a good faith estimate of such financial data, provided that Borrower provides Lender with the information upon which Borrower relied in making any such good faith estimate.
(d) All financial data and financial statements provided by Borrower hereunder pursuant to Section 11.1(c) and (d) hereof shall be prepared in accordance with GAAP, and shall meet the requirements of Regulation AB and other applicable legal requirements. All financial statements referred to in Section 11.1(c) above shall be audited by independent accountants of Borrower (which accountants shall be acceptable to Lender) in accordance with Regulation AB and all other applicable legal requirements, shall be accompanied by the manually executed report of the independent accountants thereon, which report shall meet the requirements of Regulation AB and all applicable legal requirements, and shall be further accompanied by a manually executed written consent of the independent accountants, in form and substance acceptable to Lender, to the inclusion of such financial statements in any Disclosure Document and any Exchange Act Filing and to the use of the name of such independent accountants and the reference to such independent accountants as “experts” in any Disclosure Document and Exchange Act Filing, all of which shall be provided at the same time as the related financial statements are required to be provided. All financial data and financial statements (audited or unaudited) provided by Borrower under Section 11.1(c) shall be accompanied by an Officer's Certificate stating that such financial statements meet the requirements set forth in the first sentence of this Section 11.1(d).
(e) If requested by Lender, Borrower shall provide Lender, promptly upon request and to the extent available to Borrower, with any other or additional financial statements, or financial, statistical or operating information, as Lender shall determine to be required pursuant to Regulation AB or any amendment, modification or replacement thereto or other legal requirements in connection with any Disclosure Document or any Exchange Act Filing or as shall otherwise be reasonably requested by Lender.
(f) In the event Lender determines, in connection with a Securitization, that the financial data and financial statements and (if applicable) related accountants' reports and consents required in order to comply with Regulation AB or any amendment, modification or replacement of Regulation AB or with other legal requirements are other than as provided herein, then notwithstanding the provisions of Section 11.1(c) and (d), Lender may request, and Borrower shall promptly provide, to the extent available to the Borrower, such other financial statements and (if applicable) related accountants' reports and consents as Lender determines to be necessary or appropriate for such compliance.
(g) Borrower shall be responsible for any of Borrower’s 's out-of-pocket and internal costs and expenses incurred in connection with Borrower’s 's compliance with this Section 11.1 (including, without limitation, Borrower’s 's attorney’s 's fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that Borrower shall not be required to reimburse Lender for Lender’s 's costs and expenses in connection with this Section 11.
111.1. Notwithstanding the foregoing or anything herein to the contrary, Borrower shall pay for any costs and expenses with respect to items which Borrower is otherwise required to deliver pursuant to the terms of the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Cole Credit Property Trust Iv, Inc.)
Securitization. (a) Lender shall have The Loan Parties acknowledge that the right Lenders and their Affiliates may (i) pledge all or a portion of the Loans as collateral security for loans to sell such Lenders or otherwise transfer the Loan or any portion thereof as a whole loantheir Affiliates, (ii) sell all or a portion of the Loans to sell participation a third party, (iii) issue direct or indirect interests in the Loan Loans to their controlled Affiliates or (iiiiv) to otherwise securitize the Loan or any portion thereof in a single asset securitization all or a pooled loan securitization. The portion of the Loans (any transaction referred to described in clauses (i) through (iv), (ii) and (iii) above shall hereinafter be referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”), and that the Lenders and their Affiliates may seek to have such loans to such Lenders or their Affiliates, such sold Loans, such direct or indirect interests or such securitization rated by ▇▇▇▇▇’▇, S&P or one or more other rating agencies (each, a “Rating Agency”). Any certificates, notes The Loan Parties shall reasonably cooperate with the Lenders and their Affiliates to effect any and all Securitizations and to obtain a public or other securities issued in connection with unpublished loan rating or a Securitization are hereinafter referred to as “Securities”.
(b) If corporate rating from any Rating Agency requested by any Lender, Borrower shall assist Lender in satisfying the market standards to which Lender customarily adheres or which may be reasonably required in the marketplace or by the Rating Agencies in connection with any Secondary Market Transactions, including, without limitation, to:
if so requested by a Lender, by (i) (A) provide updated financial meeting with representatives of such Rating Agency and other information discussing its business and affairs with respect such representatives to the Propertyextent required to obtain such rating, the business operated at the Property, Borrower, Guarantor, Operating Partnership and Manager, (B) provide updated budgets relating to the Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and the Rating Agencies;
(ii) provide opinions of counselamending this Loan Agreement and the other Loan Documents, which may be relied upon by Lender, the Rating Agencies and their respective counsel, agents and representativesexecuting such additional documents, as to matters of Delaware law relating to limited liability companiesreasonably requested by such Lenders, which counsel in connection with any Securitization and opinions shall be reasonably satisfactory in form and substance to Lender and the Rating Agencies;
(iii) provide updated, as of the closing date of the Secondary Market Transaction, representations and warranties made in the Loan Documents and providing such additional representations and warranties as the Rating Agencies may reasonably require;
(iv) provide such information, documents and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transaction; and
(v) execute such amendments to the Loan Documents and Borrower or any SPE Component Entity’s organizational documents information as may be reasonably requested by Lender or requested by such Lenders, in connection with the Rating Agencies or otherwise to effect the Securitization including, without limitation, bifurcation rating of the Obligations or any Securitization; provided that (a) the Loan into two or more components and/or separate notes and/or creating a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower Parties shall not be required to modify or amend incur any Loan Document if such modification or amendment would change the interest rate, the stated maturity or the amortization of principal set forth in the Note, except in connection with a Loan Bifurcation which may result in varying fixed interest rates, but which shall have the same weighted average coupon of the original Note.
(c) Borrower shall be responsible for any of Borrower’s out-of-pocket and internal costs and or expenses incurred in connection with Borrower’s compliance with any action taken at the request of a Lender pursuant to this Section 11.1 (including, without limitation, Borrower’s attorney’s fees and expenses), subject to an aggregate cap on 12.08 unless such Lender reimburses the Loan Parties for such costs and expenses of $10,000.00, and provided that Borrower (b) the Loan Parties shall not be required to reimburse take any action at the request of a Lender for Lenderpursuant to this Section 12.08 that would (x) add any new, expand the scope of any existing, representations and warranties made or to be made by the Loan Parties or their Subsidiaries, (y) impose any additional covenants, events of default or obligations on the Loan Parties or their Subsidiaries or (z) impose any new, or expand any existing, conditions on the ability to draw Loans under this Loan Agreement or take other actions otherwise permitted under this Loan Agreement and the other Loan Documents. No Securitization shall (i) release any Lender from any of its obligations hereunder, (ii) restrict or limit an Agent’s costs and expenses discretion in connection with this Section 11.
1. Notwithstanding the foregoing any amendment, supplement, waiver or anything herein to the contrary, Borrower shall pay for other modification of any costs and expenses with respect to items which Borrower is otherwise required to deliver pursuant to of the terms of this Loan Agreement or any other Loan Document or (iii) substitute any pledgee, secured party or any other party to such Securitization for such Lender as a party hereto, and no change in ownership of the Loan DocumentsLoans may be effected, in each case except pursuant to Section 12.06.
Appears in 1 contract
Sources: Loan Agreement (Phi Inc)
Securitization. The Borrower and the General Partner shall -------------- use commercially reasonable best efforts to cooperate with NACC in its activities in connection with the sale of the Loan as a whole loan or any securitization of the Loan (the "Securitization"), including obtaining ratings -------------- by the Rating Agencies. The Securitization will involve the issuance of rated single- or multi-class securities secured by or evidencing ownership interests in the Transaction Documents (the "Securities"). Such cooperation shall ---------- include, without limitation, the obligation to:
(a) Lender shall have maintain the right (i) ownership of the Properties in an entity that permits the Borrower to sell or otherwise transfer the Loan or any portion thereof as a whole loan, (ii) to sell participation interests in the Loan or (iii) to securitize the Loan or any portion thereof in a single asset securitization or a pooled loan securitization. The transaction referred to in comply with its obligations under clauses (i), (iix) and (iiiz) above shall hereinafter be referred to collectively as “Secondary Market Transactions” and the transactions referred to in clause (iii) shall hereinafter be referred to as a “Securitization”. Any certificates, notes or other securities issued in connection with a Securitization are hereinafter referred to as “Securities”.of Section 5.2;
(b) If to the extent permitted under its existing partnership agreement without the consent of its limited partners, structure and maintain the organizational, operational and financial affairs of the Borrower and the General Partner, (collectively, the "Entities") to enable its counsel to render -------- a reasoned opinion if requested by Lenderthe Rating Agencies in form and substance customary or required for rating the Securities (the "Substantive Consolidation ------------------------- Opinion") that upon a petition for bankruptcy by or against Host Marriott (or - ------- the General Partner) under the United States Bankruptcy Code, neither Host Marriott as a debtor in possession nor its bankruptcy trustees nor creditors nor any other party in interest would have sufficient basis to cause a court to order the substantive consolidation of the assets and liabilities of the General Partner or the Borrower in the case of a Host Marriott bankruptcy, or of the Borrower, in the case of a General Partner bankruptcy, with those of the debtor in bankruptcy, which counsel and which opinion shall assist Lender in satisfying be satisfactory to NACC and the market standards Rating Agencies;
(c) provide such financial and other information with respect to which Lender customarily adheres each Property, the Borrower, and, if such information is reasonably available to the Borrower, the Manager, as may be requested by the Rating Agencies or which as may be reasonably required requested by NACC, including, without limitation, audits or agreed- upon procedures of operating cash flow and Net Operating Income on an individual and aggregate Property basis, occupancy statistics, and average rents and quarterly and annual financial statements for each Property (reviewed and in the marketplace case of annual financial statements audited) by a firm of certified public accountants acceptable to NACC and the Rating Agencies to the extent customarily given in similar transactions;
(d) prepare and deliver such agreements and instruments relating to the Note, the Securities, the Properties and the Entities, including (A) agreements to indemnify the Rating Agencies, NACC and any servicer or trustee, to the extent customarily given in commercial mortgage-backed securities transactions, and (B) amendments of any of the Transaction Documents that are necessary to effect the Securitization, in form and scope satisfactory to the Rating Agencies and reasonably satisfactory to NACC;
(e) perform or permit to be performed such appraisals, surveys, site inspections, market studies, current environmental reviews and reports (Phase I's, including, without limitation, testing for asbestos, lead paint or radon gas and Phase II's and other environmental investigations recommended by environmental consultants), structural engineering reports (which shall include an analysis of requirements for deferred maintenance and ongoing capital expenditure and furniture, fixtures and equipment reserve requirements), reviews of property, casualty, business interruption, earthquake, flood, liability and title insurance and other due diligence items customarily requested by nationally recognized underwriters in connection with the origination and securitization of comparably sized commercial real estate loans or by the Rating Agencies in connection with any Secondary Market Transactionsrating the Loan or the Securities; provided, including-------- however, without limitation, to:NACC shall use its best efforts to limit the circumstances under which -------- the Borrower or the General Partner will be required to duplicate its efforts or third party costs in complying with its obligations under this clause (e);
(i) (Af) provide updated financial business plans and other information with respect to the Property, the business operated at the Property, Borrower, Guarantor, Operating Partnership and Manager, (B) provide updated budgets relating to the Property and (C) provide updated appraisals, market studies, environmental reviews (Phase I’s and, if appropriate, Phase II’s), property condition reports and other due diligence investigations of the Property (the “Updated Information”), together, if customary, with appropriate verification of the Updated Information through letters of auditors or opinions of counsel reasonably acceptable to Lender and Properties as may be requested by the Rating Agencies;
(iig) provide cause counsel to render opinions of counsel(which may be reasoned opinions) with respect to the Properties, the Entities, and the Transaction Documents as to bankruptcy remoteness and other matters customary in securitization transactions, which may be relied upon requested by Lender, 50 the Rating Agencies in form and substance customary or required for Rating the Securities which counsel and which opinion shall be satisfactory to the Rating Agencies and their respective counsel, agents and representatives, as to matters of Delaware law relating to limited liability companies, which counsel and opinions shall be reasonably satisfactory to NACC; provided, however, that if the -------- ------- Rating Agencies request opinions subsequent to the Closing Date in form connection with the Securitization that are materially different from the opinions delivered on the Closing Date, the Lender shall bear the fees and substance to Lender and the Rating Agenciesexpenses incurred by counsel in rendering such opinions;
(iiih) provide updatedmake such representations and warranties with respect to the Properties, the Entities, and the Transaction Documents as of are customary in securitization transactions and as may be requested by the closing Rating Agencies and reasonably requested by NACC and consistent with the facts covered by such representations and warranties as they exist on the date of thereof, including the Secondary Market Transaction, representations and warranties made in the Loan Documents and such additional representations and warranties as Transaction Documents;
(i) cooperate with the Lender in providing to the Rating Agencies may reasonably requiresuch information as is customarily provided in connection with annual reviews conducted in commercial mortgage backed securities transactions similar to the Securitization;
(ivj) provide such informationcooperate with NACC in the preparation, documents at NACC's cost, of a private placement memorandum, prospectus, prospectus supplement or other disclosure document to be used by NSI or any of its Affiliates to privately place or publicly distribute the Loan as a whole loan or the Securities in a manner and agreements relating to the Property Documents as Lender may reasonably request in connection with a Secondary Market Transactionextent that the same satisfy the requirements of the Securities Act and applicable state securities laws; and
(vk) execute such amendments subject to the Loan Documents provisions of Section 5.6(B), permit NACC to provide to the Rating Agencies, potential investors in the Securities and Borrower or any SPE Component Entity’s organizational documents others as may be reasonably requested by Lender or requested by the Rating Agencies or otherwise required to effect the Securitization including, without limitation, bifurcation or the sale of the Loan into two or more components and/or separate notes and/or creating as a senior/subordinate note structure (any of the foregoing, a “Loan Bifurcation”); provided, however, that Borrower shall not be required to modify or amend any Loan Document if such modification or amendment would change the interest ratewhole loan, the stated maturity or information provided to NACC by the amortization of principal set forth in Borrower and the Note, except Manager and their respective Affiliates in connection with a Loan Bifurcation which may result in varying fixed interest ratesthe transactions contemplated by this Agreement. Any and all due diligence materials (including without limitation appraisals, but which shall have the same weighted average coupon of the original Note.
(cengineering reports and environmental reports) Borrower shall be responsible for any addressed to and shall run to the benefit of NACC and its successors and assigns, the Rating Agencies and the Borrower’s out-of-pocket and internal costs and expenses incurred in connection with Borrower’s compliance with this Section 11.1 (including, without limitation, Borrower’s attorney’s fees and expenses), subject to an aggregate cap on such costs and expenses of $10,000.00, and provided that Borrower shall not be required to reimburse Lender for Lender’s costs shall, upon delivery, become the property of NACC, its successors and expenses in connection with this Section 11assigns and the Borrower.
1. Notwithstanding the foregoing or anything herein to the contrary, Borrower shall pay for any costs and expenses with respect to items which Borrower is otherwise required to deliver pursuant to the terms of the Loan Documents.
Appears in 1 contract
Sources: Loan Agreement (Fairfield Inn by Marriott LTD Partnership)