PROCEEDS, IF
LENDER IS NOT OBLIGATED OR DOES NOT ELECT TO MAKE SUCH NET PROCEEDS AVAILABLE TO
BORROWER FOR THE RESTORATION OF THE PROPERTY OR OTHERWISE REMIT SUCH NET
PROCEEDS TO BORROWER PURSUANT TO SECTION 6.4 HEREOF, BORROWER SHALL PREPAY OR
AUTHORIZE LENDER TO APPLY SUCH NET PROCEEDS AS A PREPAYMENT OF ALL OR A PORTION
OF THE OUTSTANDING PRINCIPAL BALANCE OF THE LOAN TOGETHER WITH ACCRUED INTEREST
AND ANY OTHER SUMS DUE HEREUNDER IN AN AMOUNT EQUAL TO ONE HUNDRED PERCENT
(100%) OF SUCH NET PROCEEDS; PROVIDED, HOWEVER, IF AN EVENT OF DEFAULT HAS
OCCURRED AND IS CONTINUING, LENDER MAY APPLY SUCH NET PROCEEDS TO THE DEBT
(UNTIL PAID IN FULL) IN ANY ORDER OR PRIORITY IN ITS SOLE DISCRETION.
OTHER
THAN DURING THE CONTINUANCE OF AN EVENT OF DEFAULT, NO YIELD MAINTENANCE PREMIUM
SHALL BE DUE IN CONNECTION WITH ANY PREPAYMENT MADE PURSUANT TO THIS
SECTION 2.4.2.
2.4.3
PREPAYMENTS AFTER DEFAULT.
IF DURING THE CONTINUANCE
OF AN EVENT OF DEFAULT, PAYMENT OF ALL OR ANY PART OF THE DEBT IS TENDERED BY
BORROWER OR OTHERWISE RECOVERED BY LENDER, SUCH TENDER OR 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"):
26
(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, THEN DUE
UNDER THE NOTE, THIS AGREEMENT, THE MORTGAGE 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