RATE EXTENDED MATURITY DATE, AS APPLICABLE; PROVIDED, HOWEVER, THAT
BORROWER SHALL PAY THE REASONABLE OUT-OF-POCKET COSTS INCURRED BY LENDER AND IN
CONNECTION WITH THE GIVING OF ANY EXTENSION NOTICE AND ITS REVOCATION. IF THE
TERM OF THE LOAN IS EXTENDED PURSUANT TO THE PROVISIONS OF THIS SECTION 2.17,
THEN ALL THE OTHER TERMS AND CONDITIONS OF THE LOAN DOCUMENTS SHALL REMAIN IN
FULL FORCE AND EFFECT AND UNMODIFIED.
SECTION 2.18.
DEFEASANCE.
(A)
TOTAL DEFEASANCE. SO LONG AS NO EVENT OF DEFAULT HAS OCCURRED AND
IS CONTINUING, BORROWER SHALL HAVE THE RIGHT AT ANY TIME AFTER THE FIRST OPEN
DEFEASANCE DATE TO DEFEASE THE FIXED RATE COMPONENT OF THE LOAN (A "TOTAL
DEFEASANCE") UPON SATISFACTION OF THE FOLLOWING CONDITIONS:
(I)
BORROWER SHALL PROVIDE LENDER AT LEAST THIRTY (30) DAYS' PRIOR
WRITTEN NOTICE (OR SUCH SHORTER PERIOD OF TIME IF PERMITTED BY LENDER IN ITS
SOLE DISCRETION) SPECIFYING A DATE (THE "DEFEASANCE DATE") ON WHICH BORROWER
SHALL HAVE SATISFIED THE CONDITIONS IN THIS SECTION 2.18(A) AND ON WHICH IT
SHALL EFFECT THE TOTAL DEFEASANCE;
(II)
BORROWER SHALL PAY TO LENDER (A) ALL PAYMENTS OF INTEREST DUE ON
THE LOAN TO AND INCLUDING THE DEFEASANCE DATE AND (B) ALL OTHER SUMS, THEN DUE
UNDER THE NOTE, THIS LOAN AGREEMENT, THE MORTGAGE AND THE OTHER LOAN DOCUMENTS;
(III)
BORROWER SHALL IRREVOCABLY DEPOSIT THE TOTAL DEFEASANCE
COLLATERAL INTO THE DEFEASANCE COLLATERAL ACCOUNT AND OTHERWISE COMPLY WITH THE
PROVISIONS OF THIS SECTION 2.18(A) AND SECTIONS 2.18(C) AND (D) HEREOF;
(IV)
BORROWER SHALL EXECUTE AND DELIVER TO LENDER A SECURITY AGREEMENT
IN RESPECT OF THE DEFEASANCE COLLATERAL ACCOUNT AND THE TOTAL DEFEASANCE
COLLATERAL;
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(V)
BORROWER SHALL DELIVER TO LENDER AN OPINION OF COUNSEL FOR
BORROWER THAT IS CUSTOMARY IN COMMERCIAL LENDING TRANSACTIONS AND SUBJECT ONLY
TO NORMAL QUALIFICATIONS, ASSUMPTIONS AND EXCEPTIONS OPINING, AMONG OTHER
THINGS, THAT (W) LENDER HAS A LEGAL AND VALID PERFECTED FIRST PRIORITY SECURITY
INTEREST IN THE DEFEASANCE COLLATERAL ACCOUNT AND THE TOTAL DEFEASANCE
COLLATERAL, (X) IF A SECURITIZATION HAS OCCURRED, THE TRUST FORMED PURSUANT TO
ANY 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 THE TOTAL DEFEASANCE PURSUANT TO THIS SECTION 2.18(A), (Y) A TOTAL
DEFEASANCE PURSUANT TO THIS SECTION 2.18 WILL NOT RESULT IN A DEEMED EXCHANGE
FOR PURPOSES OF THE CODE AND WILL NOT ADVERSELY AFFECT THE STATUS OF THE LOAN AS
INDEBTEDNESS FOR FEDERAL INCOME TAX PURPOSES, (Z) DELIVERY OF THE TOTAL
DEFEASANCE COLLATERAL AND THE GRANT OF A SECURITY INTEREST THEREIN TO LENDER
SHALL NOT CONSTITUTE AN AVOIDABLE PREFERENCE UNDER SECTION 547 OF THE BANKRUPTCY
CODE OR APPLICABLE STATE LAW;
(VI)
IF AND TO THE EXTENT REQUIRED BY THE RATING AGENCIES, A
NON-CONSOLIDATION OPINION WITH RESPECT TO THE SUCCESSOR BORROWER;
(VII)
BORROWER SHALL DELIVER TO LENDER A CONFIRMATION IN WRITING FROM
THE APPLICABLE RATING AGENCIES IF REQUESTED BY LENDER TO THE EFFECT THAT THE
RELEASE OF THE MORTGAGED PROPERTY FROM THE LIEN OF THE MORTGAGE AS CONTEMPLATED