TO THE CONTRARY
CONTAINED HEREIN, EACH CASUALTY/CONDEMNATION PREPAYMENT SHALL BE APPLIED IN
INVERSE ORDER OF MATURITY AND SHALL NOT EXTEND OR POSTPONE THE DUE DATES OF THE
MONTHLY INSTALLMENTS DUE UNDER THE NOTE OR THIS AGREEMENT, OR CHANGE THE 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:
(1)
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.
(2)
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;
(3)
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;
(4)
BORROWER SHALL EXECUTE AND DELIVER TO
LENDER A SECURITY AGREEMENT IN RESPECT OF THE DEFEASANCE COLLATERAL ACCOUNT AND
THE DEFEASANCE COLLATERAL;
18
(5)
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 BANKRUPTCY CODE OR APPLICABLE
STATE LAW AND (V) A NON-CONSOLIDATION OPINION WITH RESPECT TO THE SUCCESSOR
BORROWER;
(6)
BORROWER SHALL DELIVER TO LENDER A RATING
COMFORT LETTER AS TO THE DEFEASANCE EVENT;
(7)
BORROWER SHALL DELIVER AN OFFICER'S
CERTIFICATE CERTIFYING THAT THE REQUIREMENTS SET FORTH IN THIS SECTION 2.3.3
HAVE BEEN SATISFIED;
(8)