in whole, but not in part, in the manner
hereinafter set forth ("Defeasance") on any Business Day after the Lock-out
Period Expiration Date (defined below) and obtain a release ("Release") of the
Property from the lien of the Security Instrument.
Once a Defeasance has been
completed, the Loan will be secured by the Defeasance Collateral (defined
below), and thereafter the Loan cannot be the subject of any further Defeasance
nor prepaid in whole or in part, notwithstanding any provision of this Section
2.05 to the contrary.
"Lock-out Period Expiration Date" means the earlier to
occur of (i) the third (3rd) anniversary of the Closing Date, or (ii) the second
(2nd) anniversary of the "startup day" (within the meaning of Section 860G(a)(9)
of the Tax
18
Code) of the REMIC Trust established in connection with the last Securitization
involving any portion of the Loan.
(ii)
Conditions to Defeasance.
Borrower may cause a Release upon the
satisfaction of the following conditions (all as reasonably approved by Lender):
(A)
no Event of Default shall exist under any of the Loan Documents;
(B)
NOT LESS THAN FORTY-FIVE (45) (BUT NOT MORE THAN NINETY (90) DAYS
PRIOR WRITTEN NOTICE SHALL BE GIVEN TO LENDER SPECIFYING A DATE (SUCH DATE BEING
ON A PAYMENT DUE DATE) ON WHICH THE DEFEASANCE COLLATERAL (AS HEREINAFTER
DEFINED) IS TO BE DELIVERED (THE "RELEASE DATE");
(C)
ALL ACCRUED AND UNPAID INTEREST AND ALL OTHER SUMS DUE UNDER THE
NOTE, THIS LOAN AGREEMENT AND UNDER THE OTHER LOAN DOCUMENTS UP TO THE RELEASE
DATE INCLUDING, WITHOUT LIMITATION, ALL FEES, COSTS AND EXPENSES INCURRED BY
LENDER AND ITS AGENTS IN CONNECTION WITH SUCH RELEASE (INCLUDING, WITHOUT
LIMITATION, REASONABLE LEGAL FEES AND EXPENSES FOR THE REVIEW AND PREPARATION OF
THE DEFEASANCE PLEDGE AGREEMENT (AS DEFINED BELOW) AND OF THE OTHER MATERIALS
DESCRIBED IN SECTION 2.05(B)(II)(D) BELOW AND ANY RELATED DOCUMENTATION, AND ANY
SERVICING FEES, RATING AGENCY FEES OR OTHER COSTS RELATED TO SUCH RELEASE),
SHALL BE PAID IN FULL ON OR PRIOR TO THE RELEASE DATE;
(D)
BORROWER SHALL DELIVER TO LENDER ON OR PRIOR TO THE RELEASE DATE:
1.
THE DEFEASANCE COLLATERAL WHICH MEETS ALL REQUIREMENTS OF
SUBSECTION 2.05(B)(III) BELOW AND IS OWNED BY BORROWER, FREE AND CLEAR OF ALL
LIENS AND CLAIMS OF THIRD-PARTIES.
2.
A WRITTEN CERTIFICATION OF AN INDEPENDENT CERTIFIED PUBLIC
ACCOUNTING FIRM (REASONABLY ACCEPTABLE TO LENDER), CONFIRMING THAT THE
DEFEASANCE COLLATERAL WILL GENERATE AMOUNTS SUFFICIENT TO MAKE ALL SCHEDULED
DEBT PAYMENTS AS THEY FALL DUE UNDER THE NOTE, INCLUDING FULL PAYMENT DUE ON THE
NOTE ON THE MATURITY DATE.
3.
A PLEDGE AND SECURITY AGREEMENT IN FORM AND SUBSTANCE REASONABLY
ACCEPTABLE TO LENDER ("DEFEASANCE PLEDGE AGREEMENT") AND FINANCING STATEMENTS
WHICH PLEDGE AND CREATE A FIRST PRIORITY SECURITY INTEREST IN THE DEFEASANCE
COLLATERAL IN FAVOR OF LENDER.
4.
CONFIRMATION IN WRITING FROM LENDER'S CUSTODIAN THAT IT HAS
RECEIVED ALL OF THE DEFEASANCE COLLATERAL FOR THE ACCOUNT AND BENEFIT OF LENDER.
19
5.
A WRITTEN CERTIFICATION FROM BORROWER WHICH CONFIRMS THAT,
FOLLOWING DEFEASANCE, BORROWER CONTINUES TO SATISFY THE