amounts
of such installments. In addition, and notwithstanding anything to the contrary
contained herein or in any other Loan Document, provided no Event of Default is
continuing, no Yield Maintenance Premium shall be payable in connection with any
prepayment of the Debt required by Lender under Sections 5 and 6 of the
Mortgage.
2.3.3
DEFEASANCE
(A)
CONDITIONS TO DEFEASANCE.
PROVIDED NO EVENT OF DEFAULT SHALL BE
CONTINUING, BORROWER SHALL HAVE THE RIGHT ON ANY PAYMENT DATE AFTER THE RELEASE
DATE AND PRIOR TO THE PERMITTED PREPAYMENT DATE TO VOLUNTARILY DEFEASE THE
ENTIRE AMOUNT OF THE PRINCIPAL AND OBTAIN A RELEASE OF THE LIEN OF THE MORTGAGE
BY PROVIDING LENDER WITH THE DEFEASANCE COLLATERAL (A "DEFEASANCE EVENT"),
SUBJECT TO THE SATISFACTION OF THE FOLLOWING CONDITIONS PRECEDENT:
(I)
BORROWER SHALL GIVE LENDER NOT LESS THAN THIRTY (30) DAYS PRIOR WRITTEN
NOTICE SPECIFYING A PAYMENT DATE (THE "DEFEASANCE DATE") ON WHICH THE DEFEASANCE
EVENT IS TO OCCUR.
(II)
BORROWER SHALL PAY TO LENDER (A) ALL PAYMENTS OF PRINCIPAL AND INTEREST
DUE ON THE LOAN TO AND INCLUDING THE DEFEASANCE DATE AND (B) ALL OTHER SUMS,
THEN DUE UNDER THE NOTE, THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS;
(III)
BORROWER SHALL DEPOSIT THE DEFEASANCE COLLATERAL INTO THE DEFEASANCE
COLLATERAL ACCOUNT AND OTHERWISE COMPLY WITH THE PROVISIONS OF SUBSECTIONS
(B) AND (C) OF THIS SECTION 2.3.3;
(IV)
BORROWER SHALL EXECUTE AND DELIVER TO LENDER A SECURITY AGREEMENT IN
RESPECT OF THE DEFEASANCE COLLATERAL ACCOUNT AND THE DEFEASANCE COLLATERAL;
(V)
BORROWER SHALL DELIVER TO LENDER 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
(I) LENDER HAS A LEGAL AND VALID PERFECTED FIRST PRIORITY SECURITY INTEREST IN
THE DEFEASANCE COLLATERAL ACCOUNT AND THE DEFEASANCE COLLATERAL, (II) IF A
SECURITIZATION HAS OCCURRED, THE REMIC TRUST FORMED PURSUANT TO SUCH
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 A DEFEASANCE EVENT PURSUANT TO THIS SECTION 2.3.3, (III) THE DEFEASANCE EVENT
WILL NOT RESULT IN A SIGNIFICANT MODIFICATION AND WILL NOT BE AN EXCHANGE OF THE
NOTE FOR PURPOSES OF SECTION 1001 OF THE CODE AND THE TREASURY REGULATIONS
THEREUNDER, (IV) DELIVERY OF THE DEFEASANCE COLLATERAL AND THE GRANT OF A
SECURITY INTEREST THEREIN TO LENDER WILL NOT CONSTITUTE AN AVOIDABLE PREFERENCE
UNDER SECTION 547 OF THE
18
BANKRUPTCY CODE OR APPLICABLE STATE LAW AND (V) A NON-CONSOLIDATION OPINION WITH
RESPECT TO THE SUCCESSOR BORROWER;
(VI)
BORROWER SHALL DELIVER TO LENDER A RATING COMFORT LETTER AS TO THE
DEFEASANCE EVENT;
(VII) BORROWER SHALL DELIVER AN OFFICER'S CERTIFICATE CERTIFYING THAT THE
REQUIREMENTS SET FORTH IN THIS SECTION 2.3.3 HAVE BEEN SATISFIED;
(VIII)
BORROWER SHALL DELIVER A CERTIFICATE OF A "BIG FOUR" OR OTHER
NATIONALLY RECOGNIZED PUBLIC ACCOUNTING FIRM ACCEPTABLE TO LENDER CERTIFYING
THAT (I) THE DEFEASANCE COLLATERAL WILL GENERATE MONTHLY AMOUNTS EQUAL TO OR
GREATER THAN THE SCHEDULED DEFEASANCE PAYMENTS, AND