RECOVERY SHALL BE (A) MADE ON THE
NEXT OCCURRING PAYMENT DATE TOGETHER WITH THE MONTHLY DEBT SERVICE PAYMENT AND
(B) DEEMED A VOLUNTARY PREPAYMENT BY BORROWER IN VIOLATION OF THE PROHIBITION
AGAINST PREPAYMENT SET FORTH IN SECTION 2.4.1 HEREOF AND BORROWER SHALL PAY, IN
ADDITION TO THE DEBT, AN AMOUNT EQUAL TO THE YIELD MAINTENANCE PREMIUM.
SECTION 2.5
DEFEASANCE.
2.5.1
VOLUNTARY DEFEASANCE.
(A)
PROVIDED NO EVENT OF DEFAULT SHALL THEN
EXIST, BORROWER SHALL HAVE THE RIGHT AT ANY TIME AFTER THE EARLIER TO OCCUR OF
THE DEFEASANCE EXPIRATION DATE AND THE PERMITTED RELEASE DATE AND PRIOR TO THE
DATE VOLUNTARILY PREPAYMENTS ARE PERMITTED UNDER SECTION 2.4.1 HEREOF TO
VOLUNTARILY DEFEASE THE LOAN IN FULL BY AND UPON SATISFACTION OF THE FOLLOWING
CONDITIONS (SUCH EVENT BEING A "DEFEASANCE EVENT"):
(I)
BORROWER SHALL PROVIDE NOT LESS THAN THIRTY (30) DAYS PRIOR WRITTEN
NOTICE TO LENDER SPECIFYING THE PAYMENT DATE (THE "DEFEASANCE DATE") ON WHICH
THE DEFEASANCE EVENT IS TO OCCUR;
(II)
[INTENTIONALLY OMITTED];
(III)
BORROWER SHALL PAY TO LENDER ALL OTHER SUMS (NOT INCLUDING SCHEDULED
INTEREST OR PRINCIPAL PAYMENTS, PROVIDED THAT THE MONTHLY DEBT SERVICE
26
PAYMENT AMOUNT DUE ON THE PAYMENT DATE WHICH IS THE DEFEASANCE DATE HAS BEEN
PAID) THEN DUE UNDER THE NOTE, THIS AGREEMENT, THE SECURITY INSTRUMENT AND THE
OTHER LOAN DOCUMENTS;
(IV)
BORROWER SHALL PAY TO LENDER THE REQUIRED DEFEASANCE DEPOSIT FOR THE
DEFEASANCE EVENT;
(V)
[INTENTIONALLY OMITTED];
(VI)
BORROWER SHALL EXECUTE AND DELIVER A PLEDGE AND SECURITY AGREEMENT, IN
FORM AND SUBSTANCE THAT WOULD BE REASONABLY SATISFACTORY TO A PRUDENT LENDER
CREATING A FIRST PRIORITY LIEN ON THE DEFEASANCE DEPOSIT AND THE U.S.
OBLIGATIONS PURCHASED WITH THE DEFEASANCE DEPOSIT IN ACCORDANCE WITH THE
PROVISIONS OF THIS SECTION 2.5 (THE "SECURITY AGREEMENT");
(VII) BORROWER SHALL DELIVER AN OPINION OF COUNSEL FOR BORROWER THAT IS STANDARD
IN COMMERCIAL LENDING TRANSACTIONS AND SUBJECT ONLY TO CUSTOMARY QUALIFICATIONS,
ASSUMPTIONS AND EXCEPTIONS OPINING, AMONG OTHER THINGS, THAT BORROWER HAS
LEGALLY AND VALIDLY TRANSFERRED AND ASSIGNED THE U.S. OBLIGATIONS AND ALL
OBLIGATIONS, RIGHTS AND DUTIES UNDER AND TO THE NOTE TO THE SUCCESSOR BORROWER,
THAT LENDER HAS A PERFECTED FIRST PRIORITY SECURITY INTEREST IN THE DEFEASANCE
DEPOSIT AND THE U.S. OBLIGATIONS DELIVERED BY BORROWER AND THAT ANY REMIC TRUST
FORMED PURSUANT TO A SECURITIZATION WILL NOT FAIL TO MAINTAIN ITS STATUS AS A
"REAL ESTATE MORTGAGE INVESTMENT CONDUIT" WITHIN THE MEANING OF SECTION 860D OF
THE CODE AS A RESULT OF SUCH DEFEASANCE EVENT;
(VIII)
IF REQUIRED PURSUANT TO THE APPLICABLE POOLING AND SERVICING AGREEMENT
OR BY THE RATING AGENCIES, BORROWER SHALL DELIVER CONFIRMATION IN WRITING FROM
EACH OF THE APPLICABLE RATING AGENCIES TO THE EFFECT THAT SUCH RELEASE WILL NOT
RESULT IN A DOWNGRADE, WITHDRAWAL OR QUALIFICATION OF THE RESPECTIVE RATINGS IN
EFFECT IMMEDIATELY PRIOR TO SUCH DEFEASANCE EVENT FOR THE SECURITIES ISSUED IN
CONNECTION WITH THE SECURITIZATION WHICH ARE THEN OUTSTANDING.
IF REQUIRED BY
THE APPLICABLE RATING AGENCIES, BORROWER SHALL ALSO DELIVER OR CAUSE TO BE
DELIVERED AN ADDITIONAL INSOLVENCY OPINION WITH RESPECT TO THE SUCCESSOR
BORROWER IN FORM