Conditions to Substitution. In addition to the requirements in Section 2.7(b) above, substitution of any Property pursuant to this Section 2.7 shall be subject to the satisfaction of the following, all of which shall be prepared or obtained at Borrower's expense: (i) simultaneously with the Substitution, Borrower shall convey fee simple title to the Replaced Property to a Person other than Borrower; (ii) Intentionally Deleted; (iii) Intentionally Deleted; (iv) receipt by Lender and the Rating Agencies of written notice thereof from Borrower at least thirty (30) days before the date of the proposed Substitution (the "SUBSTITUTION DATE"), together with (1) written evidence that the property proposed to be a Substitute Property complies with Section 2.7(b) above and (2) such other information, including financial information, as Lender or the Rating Agencies may request; (v) Lender's receipt of written affirmation from the Rating Agencies that the ratings of the Securities immediately prior to such Substitution will not be qualified, downgraded or withdrawn as a result of such Substitution, which affirmation may be granted or withheld in the Rating Agencies' sole and absolute discretion; (vi) delivery to Lender of an opinion of counsel opining as to the enforceability of the Substitute Security Instrument with respect to the Substitute Property in substantially the same form and substance as the opinion of counsel concerning enforceability originally delivered at the Closing Date in connection with the Replaced Property, with reasonable allowance for variations in applicable State law, and a Nondisqualification Opinion and a Tax Opinion; (vii) no Event of Default shall have occurred and be continuing; (viii) the representations and warranties set forth in this Agreement, in the Security Instrument and the Loan Documents applicable to the Replaced Property shall be true and correct (except as to title exceptions) as to the Substitute Property on the Substitution Date in all material respects; (ix) delivery to Lender of a copy of the organizational documents of Borrower and all amendments thereto, certified as true, complete and correct as of the date of delivery by an Officer's Certificate; a certificate from the secretary of the State or other applicable State official or officer in Borrower's State of formation certifying that it is duly formed and in good standing (with tax clearance, if applicable), if available, and certificates from the Secretary of State of the State in which the Substitute Property is located (if such certificates are issued), certifying as to Borrower's good standing as a limited liability company in such State (with tax clearance, if applicable); delivery of an Officer's Certificate, dated the Substitution Date and signed on behalf of its Secretary or Assistant Secretary, certifying the names of the officers of the general partner of the sole member of Borrower authorized to execute and deliver, in the name and on behalf of Borrower, the Security Instrument, Assignment of Leases, UCC Financing Statements, and the other Loan Documents pertaining to such Substitute Property to which Borrower is a party, together with the original (not photocopied) signatures of such officers; (x) delivery to Lender of an Officer's Certificate certifying to the veracity of the statements in Subsections 2.7(b)(ii), 2.7(b)(iii), 2.7(b)(iv), 2.7(b)(vii), 2.7(c)(viii), and 2.7(c)(ix) hereof; (xi) delivery to Lender of originals of the following: (1) Borrower shall have executed, acknowledged and delivered to Lender a Security Instrument, an Assignment of Leases and two UCC Financing Statements (to the extent execution and acknowledgment are required) with respect to the Substitute Property, together with a letter from Borrower countersigned by a title insurance company acknowledging receipt of such Security Instrument, Assignment of Leases and UCC-1 Financing Statements and agreeing to record or file, as applicable, such Security Instrument, Assignment of Leases and Rents and, with regard to the UCC-1 Financing Statements, if recordation or a system of filing is accepted or established in the applicable jurisdiction, one of the UCC-1 Financing Statements in the real estate records for the county in which the Substitute Property is located and, subject to local law, rule or custom, to file one of the UCC-1 Financing Statements in the office of the Secretary of State of the State in which Borrower has been formed, so as to effectively create upon such recording and filing valid and enforceable Liens upon the Substitute Property, of the requisite priority, in favor of Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents. The Security Instrument, Assignment of Leases and UCC-1 Financing Statements shall be the same in form and substance as the counterparts of such documents executed and delivered with respect to the related Replaced Property subject to modifications reflecting the Substitute Property as the Property that is the subject of such documents and such modifications reflecting the laws of the State in which the Substitute Property is located as shall be recommended by the counsel admitted to practice in such State and delivering the opinion of counsel as to the enforceability of such documents required pursuant to this Section. The Security Instrument encumbering the Substitute Property shall secure all amounts evidenced by the Note, provided that in the event that the jurisdiction in which the Substitute Property is located imposes a mortgage recording, intangibles or similar tax and does not permit the allocation of indebtedness for the purpose of determining the amount of such tax payable, the principal amount secured by such Security Instrument shall be equal to one hundred fifty percent (150%) of the amount of the Loan allocated to the Substitute Property; (2) Lender shall have received (A) any "tie-in" or similar endorsement to each Title Insurance Policy insuring the Lien of the Security Instrument as of the date of the substitution available with respect to the Title Insurance Policy insuring the Lien of the Security Instrument with respect to the Substitute Property and (B) a Title Insurance Policy (or a marked, signed and redated commitment to issue such Title Insurance Policy) insuring the Lien of the Security Instrument encumbering the Substitute Property, issued by the title company that issued the Title Insurance Policies insuring the Lien of the Security Instrument and dated as of the date of the substitution, with reinsurance and direct access agreements that replace such agreements issued in connection with the Title Insurance Policy insuring the Lien of the Security Instrument encumbering the Replaced Property. The Title Insurance Policy issued with respect to the Substitute Property shall (1) provide coverage in the amount of the Release Amount applicable to the Substitute Property if the "tie-in" or similar endorsement described above is available or, if such endorsement is not available, in an amount equal to one hundred fifty percent (150%) of the Release Amount applicable for the Substitute Property, (2) insure Lender that the relevant Security Instrument creates a valid first lien on the Substitute Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (3) contain such legally available endorsements and affirmative coverages as are contained in the Title Insurance Policies insuring the Liens of the existing Security Instrument, and (4) name Lender as the insured. Lender also shall have received copies of paid receipts showing that all costs of or premiums for such endorsements and Title Insurance Policies have been paid; (3) a current as-built land title Survey and a certificate from a professional licensed land surveyor with respect to such Substitute Property, certified to the Title Company and Lender, and prepared in accordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys meeting the classification of an "Urban Survey" and the following additional items from the list of "Optional Survey Responsibilities and Specifications" (Table A) shall be added to each survey 2, 3, 4, 6, 8, 9, 10, 11(a) (as to utilities, surface matters only) and 13, and showing the location, dimensions and area of each parcel of the Substitute Property, including all existing buildings and improvements, utilities, parking areas and spaces, internal streets, if any, external streets, rights-of-way, as well as any easements, setback violations or encroachments on such Substitute Property and identifying each item with its corresponding exception, if any, in the title policy relating thereto. Each survey shall contain the original signature and seal of the surveyor and any additional matter required by the Title Company. In addition, Borrower shall provide with respect to each Substitute Property a certificate of a professional land surveyor to the effect that the Improvements located upon such Substitute Property are not located in a flood plain area, or, if such Substitute Property is in a flood plain area, Borrower shall deliver on the Closing Date evidence of flood insurance; (4) a certified copy of a deed conveying to Borrower all right, title and interest in and to the Replaced Property and a letter from a title insurance company acknowledging receipt of such deed and agreeing to record such deed in the real estate records for the county in which the Replaced Property is located; (5) insurance certificates issued by insurance companies evidencing the insurance coverage required under Section 6.1 hereof;
Appears in 1 contract
Samples: Loan Agreement (U-Store-It Trust)
Conditions to Substitution. In addition to the requirements in Section 2.7(b) above, No substitution of any Property pursuant to this Section 2.7 a Collateral Asset with a Substitute Loan shall be subject to the satisfaction occur unless each of the followingfollowing conditions is satisfied (or waived by the Administrative Agent) as of the date of such substitution, after giving effect to such substitution, all other substitutions of which shall be prepared Collateral Assets occurring substantially concurrently and all sales or obtained at Borrower's expensepurchases of Collateral Assets previously or substantially concurrently committed to:
(i) simultaneously with the Substitution, Borrower shall convey fee simple title to the Replaced Property to a Person other than Borrowersuch Substitute Loan is an Eligible Collateral Asset;
(ii) Intentionally Deletedeach Collateral Quality Test is satisfied or, if it is not satisfied, maintained or improved and (y) the Borrowing Base Test is satisfied;
(iii) Intentionally Deleted;[reserved]
(iv) receipt by Lender no Default or Event of Default has occurred and is continuing (before or after giving effect to such substitution of Collateral Assets, all other substitutions occurring substantially concurrently and all sales or purchases of Collateral Assets previously or substantially concurrently committed to), unless such Default or Event of Default will be cured upon giving effect to such transactions and the Rating Agencies of written notice thereof from Borrower at least thirty (30) days before the date application of the proposed Substitution (the "SUBSTITUTION DATE"), together with (1) written evidence that the property proposed to be a Substitute Property complies with Section 2.7(b) above and (2) such other information, including financial information, as Lender or the Rating Agencies may requestproceeds thereof;
(v) Lender's receipt the Borrower (or the Collateral Manager acting on its behalf) shall notify the Administrative Agent of written affirmation from any amount to be deposited into the Rating Agencies that Collection Account in connection with any such substitution and shall deliver to the ratings of Custodian the Securities immediately prior to Required Loan Documents for such Substitution will not be qualified, downgraded or withdrawn as a result of such Substitution, which affirmation may be granted or withheld in the Rating Agencies' sole and absolute discretionSubstitute Loan;
(vi) delivery to Lender of an opinion of counsel opining as to the enforceability upon confirmation of the Substitute Security Instrument with respect to the Substitute Property in substantially the same form and substance as the opinion of counsel concerning enforceability originally delivered at the Closing Date in connection with the Replaced Property, with reasonable allowance for variations in applicable State law, and a Nondisqualification Opinion and a Tax Opinion;
(vii) no Event of Default shall have occurred and be continuing;
(viii) the representations and warranties set forth in this Agreement, in the Security Instrument and the Loan Documents applicable to the Replaced Property shall be true and correct (except as to title exceptions) as to the Substitute Property on the Substitution Date in all material respects;
(ix) delivery to Lender of a copy of the organizational documents of Borrower and all amendments thereto, certified as true, complete and correct as of Substitute Loan for each applicable Collateral Asset being substituted for (the date of delivery by an Officer's Certificate; a certificate such confirmation or delivery, the “Retransfer Date”), each applicable Collateral Asset being substituted for shall be removed from the secretary of the State or other applicable State official or officer in Borrower's State of formation certifying that it is duly formed and in good standing (with tax clearance, if applicable), if available, and certificates from the Secretary of State of the State in which the Substitute Property is located (if such certificates are issued), certifying as to Borrower's good standing as a limited liability company in such State (with tax clearance, if applicable); delivery of an Officer's Certificate, dated the Substitution Date and signed on behalf of its Secretary or Assistant Secretary, certifying the names of the officers of the general partner of the sole member of Borrower authorized to execute and deliver, in the name and on behalf of Borrower, the Security Instrument, Assignment of Leases, UCC Financing Statements, Collateral and the other Loan Documents pertaining to such applicable Substitute Property to which Borrower is a party, together with the original (not photocopied) signatures of such officers;
(x) delivery to Lender of an Officer's Certificate certifying to the veracity of the statements in Subsections 2.7(b)(ii), 2.7(b)(iii), 2.7(b)(iv), 2.7(b)(vii), 2.7(c)(viii), and 2.7(c)(ix) hereof;
(xi) delivery to Lender of originals of the following:
(1) Borrower shall have executed, acknowledged and delivered to Lender a Security Instrument, an Assignment of Leases and two UCC Financing Statements (to the extent execution and acknowledgment are required) with respect to the Substitute Property, together with a letter from Borrower countersigned by a title insurance company acknowledging receipt of such Security Instrument, Assignment of Leases and UCC-1 Financing Statements and agreeing to record or file, as applicable, such Security Instrument, Assignment of Leases and Rents and, with regard to the UCC-1 Financing Statements, if recordation or a system of filing is accepted or established in the applicable jurisdiction, one of the UCC-1 Financing Statements in the real estate records for the county in which the Substitute Property is located and, subject to local law, rule or custom, to file one of the UCC-1 Financing Statements in the office of the Secretary of State of the State in which Borrower has been formed, so as to effectively create upon such recording and filing valid and enforceable Liens upon the Substitute Property, of the requisite priority, in favor of Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents. The Security Instrument, Assignment of Leases and UCC-1 Financing Statements shall be the same in form and substance as the counterparts of such documents executed and delivered with respect to the related Replaced Property subject to modifications reflecting the Substitute Property as the Property that is the subject of such documents and such modifications reflecting the laws of the State in which the Substitute Property is located as shall be recommended by the counsel admitted to practice in such State and delivering the opinion of counsel as to the enforceability of such documents required pursuant to this Section. The Security Instrument encumbering the Substitute Property shall secure all amounts evidenced by the Note, provided that in the event that the jurisdiction in which the Substitute Property is located imposes a mortgage recording, intangibles or similar tax and does not permit the allocation of indebtedness for the purpose of determining the amount of such tax payable, the principal amount secured by such Security Instrument shall be equal to one hundred fifty percent (150%) of the amount of the Loan allocated to the Substitute Property;
(2) Lender shall have received (A) any "tie-in" or similar endorsement to each Title Insurance Policy insuring the Lien of the Security Instrument as of the date of the substitution available with respect to the Title Insurance Policy insuring the Lien of the Security Instrument with respect to the Substitute Property and (B) a Title Insurance Policy (or a marked, signed and redated commitment to issue such Title Insurance Policy) insuring the Lien of the Security Instrument encumbering the Substitute Property, issued by the title company that issued the Title Insurance Policies insuring the Lien of the Security Instrument and dated as of the date of the substitution, with reinsurance and direct access agreements that replace such agreements issued in connection with the Title Insurance Policy insuring the Lien of the Security Instrument encumbering the Replaced Property. The Title Insurance Policy issued with respect to the Substitute Property shall (1) provide coverage in the amount of the Release Amount applicable to the Substitute Property if the "tie-in" or similar endorsement described above is available or, if such endorsement is not available, in an amount equal to one hundred fifty percent (150%) of the Release Amount applicable for the Substitute Property, (2) insure Lender that the relevant Security Instrument creates a valid first lien on the Substitute Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (3) contain such legally available endorsements and affirmative coverages as are contained in the Title Insurance Policies insuring the Liens of the existing Security Instrument, and (4) name Lender as the insured. Lender also shall have received copies of paid receipts showing that all costs of or premiums for such endorsements and Title Insurance Policies have been paid;
(3) a current as-built land title Survey and a certificate from a professional licensed land surveyor with respect to such Substitute Property, certified to the Title Company and Lender, and prepared in accordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys meeting the classification of an "Urban Survey" and the following additional items from the list of "Optional Survey Responsibilities and Specifications" (Table ALoan(s) shall be added to each survey 2included in the Collateral. On the Retransfer Date of a Collateral Asset, 3the Collateral Agent, 4, 6, 8, 9, 10, 11(a) (as to utilities, surface matters only) and 13, and showing for the location, dimensions and area of each parcel benefit of the Substitute PropertySecured Parties, including all existing buildings shall automatically and improvements, utilities, parking areas without further action be deemed to release and spaces, internal streets, if any, external streets, rights-of-way, as well as any easements, setback violations or encroachments on such Substitute Property and identifying each item with its corresponding exception, if any, in the title policy relating thereto. Each survey shall contain the original signature and seal of the surveyor and any additional matter required by the Title Company. In addition, Borrower shall provide with respect to each Substitute Property a certificate of a professional land surveyor transfer to the effect that Borrower, without recourse, representation or warranty, all the Improvements located upon such Substitute Property are not located in a flood plain area, or, if such Substitute Property is in a flood plain area, Borrower shall deliver on the Closing Date evidence of flood insurance;
(4) a certified copy of a deed conveying to Borrower all right, title and interest in of the Collateral Agent, for the benefit of the Secured Parties in, to and under such Collateral Asset being substituted for. The Collateral Agent, for the benefit of the Secured Parties, shall, at the sole expense of the Borrower, execute such documents and instruments of transfer as may be prepared by the Collateral Manager, on behalf of the Borrower, and take such other actions as shall reasonably be requested by the Borrower to effect the release and transfer of such Collateral Asset pursuant to this Section 10.03; and
(vii) the Borrower shall deliver to the Replaced Property and a letter from a title insurance company acknowledging receipt Administrative Agent on the date of such deed and agreeing to record such deed in the real estate records for the county in which the Replaced Property is located;
(5) insurance certificates issued by insurance companies evidencing the insurance coverage required under Section 6.1 hereof;substitution a Borrowing Base Calculation Statement.
Appears in 1 contract
Samples: Credit and Security Agreement (Owl Rock Technology Income Corp.)
Conditions to Substitution. In addition to the requirements in Section 2.7(b) above, substitution of any Property pursuant to this Section 2.7 shall be subject to the satisfaction of the following, all of which shall be prepared or obtained at Borrower's expense:
(i) simultaneously with the Substitution, Borrower shall convey fee simple title to the Replaced Property to a Person other than Borrower;
(ii) Intentionally Deleted;
(iii) Intentionally Deleted;
(iv) receipt by Lender and the Rating Agencies of written notice thereof from Borrower at least thirty (30) days before the date of the proposed Substitution (the "SUBSTITUTION DATE"), together with (1) written evidence that the property proposed to be a Substitute Property complies with Section 2.7(b) above and (2) such other information, including financial information, as Lender or the Rating Agencies may request;
(v) Lender's receipt of written affirmation from the Rating Agencies that the ratings of the Securities immediately prior to such Substitution will not be qualified, downgraded or withdrawn as a result of such Substitution, which affirmation may be granted or withheld in the Rating Agencies' sole and absolute discretion;
(vi) delivery to Lender of an opinion of counsel opining as to the enforceability of the Substitute Security Instrument with respect to the Substitute Property in substantially the same form and substance as the opinion of counsel concerning enforceability originally delivered at the Closing Date in connection with the Replaced Property, with reasonable allowance for variations in applicable State law, and a Nondisqualification Opinion and a Tax Opinion;
(vii) no Event of Default shall have occurred and be continuing;
(viii) the representations and warranties set forth in this Agreement, in the Security Instrument and the Loan Documents applicable to the Replaced Property shall be true and correct (except as to title exceptions) as to the Substitute Property on the Substitution Date in all material respects;
(ix) delivery to Lender of a copy of the organizational documents of Borrower and all amendments thereto, certified as true, complete and correct as of the date of delivery by an Officer's Certificate; a certificate from the secretary of the State or other applicable State official or officer in Borrower's State of formation certifying that it is duly formed and in good standing (with tax clearance, if applicable), if available, and certificates from the Secretary of State of the State in which the Substitute Property is located (if such certificates are issued), certifying as to Borrower's good standing as a limited liability company in such State (with tax clearance, if applicable); delivery of an Officer's Certificate, dated the Substitution Date and signed on behalf of its Secretary or Assistant Secretary, certifying the names of the officers of the general partner of the sole member of Borrower authorized to execute and deliver, in the name and on behalf of Borrower, the Security Instrument, Assignment of Leases, UCC Financing Statements, and the other Loan Documents pertaining to such Substitute Property to which Borrower is a party, together with the original (not photocopied) signatures of such officers;
(x) delivery to Lender of an Officer's Certificate certifying to the veracity of the statements in Subsections 2.7(b)(ii), 2.7(b)(iii), 2.7(b)(iv), 2.7(b)(vii), 2.7(c)(viii), and 2.7(c)(ix) hereof;
(xi) delivery to Lender of originals of the following:
(1) Borrower shall have executed, acknowledged and delivered to Lender a Security Instrument, an Assignment of Leases and two UCC Financing Statements (to the extent execution and acknowledgment are required) with respect to the Substitute Property, together with a letter from Borrower countersigned by a title insurance company acknowledging receipt of such Security Instrument, Assignment of Leases and UCC-1 Financing Statements and agreeing to record or file, as applicable, such Security Instrument, Assignment of Leases and Rents and, with regard to the UCC-1 Financing Statements, if recordation or a system of filing is accepted or established in the applicable jurisdiction, one of the UCC-1 Financing Statements in the real estate records for the county in which the Substitute Property is located and, subject to local law, rule or custom, to file one of the UCC-1 Financing Statements in the office of the Secretary of State of the State in which Borrower has been formed, so as to effectively create upon such recording and filing valid and enforceable Liens upon the Substitute Property, of the requisite priority, in favor of Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents. The Security Instrument, Assignment of Leases and UCC-1 Financing Statements shall be the same in form and substance as the counterparts of such documents executed and delivered with respect to the related Replaced Property subject to modifications reflecting the Substitute Property as the Property that is the subject of such documents and such modifications reflecting the laws of the State in which the Substitute Property is located as shall be recommended by the counsel admitted to practice in such State and delivering the opinion of counsel as to the enforceability of such documents required pursuant to this Section. The Security Instrument encumbering the Substitute Property shall secure all amounts evidenced by the Note, provided that in the event that the jurisdiction in which the Substitute Property is located imposes a mortgage recording, intangibles or similar tax and does not permit the allocation of indebtedness for the purpose of determining the amount of such tax payable, the principal amount secured by such Security Instrument shall be equal to one hundred fifty percent (150%) of the amount of the Loan allocated to the Substitute Property;
(2) Lender shall have received (A) any "tie-in" or similar endorsement to each Title Insurance Policy insuring the Lien of the Security Instrument as of the date of the substitution available with respect to the Title Insurance Policy insuring the Lien of the Security Instrument with respect to the Substitute Property and (B) a Title Insurance Policy (or a marked, signed and redated commitment to issue such Title Insurance Policy) insuring the Lien of the Security Instrument encumbering the Substitute Property, issued by the title company that issued the Title Insurance Policies insuring the Lien of the Security Instrument and dated as of the date of the substitution, with reinsurance and direct access agreements that replace such agreements issued in connection with the Title Insurance Policy insuring the Lien of the Security Instrument encumbering the Replaced Property. The Title Insurance Policy issued with respect to the Substitute Property shall (1) provide coverage in the amount of the Release Amount applicable to the Substitute Property if the "tie-in" or similar endorsement described above is available or, if such endorsement is not available, in an amount equal to one hundred fifty percent (150%) of the Release Amount applicable for the Substitute Property, (2) insure Lender that the relevant Security Instrument creates a valid first lien on the Substitute Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (3) contain such legally available endorsements and affirmative coverages as are contained in the Title Insurance Policies insuring the Liens of the existing Security Instrument, and (4) name Lender as the insured. Lender also shall have received copies of paid receipts showing that all costs of or premiums for such endorsements and Title Insurance Policies have been paid;
(3) a current as-built land title Survey and a certificate from a professional licensed land surveyor with respect to such Substitute Property, certified to the Title Company and Lender, and prepared in accordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys meeting the classification of an "Urban Survey" and the following additional items from the list of "Optional Survey Responsibilities and Specifications" (Table A) shall be added to each survey 2, 3, 4, 6, 8, 9, 10, 11(a) (as to utilities, surface matters only) and 13, and showing the location, dimensions and area of each parcel of the Substitute Property, including all existing buildings and improvements, utilities, parking areas and spaces, internal streets, if any, external streets, rights-of-way, as well as any easements, setback violations or encroachments on such Substitute Property and identifying each item with its corresponding exception, if any, in the title policy relating thereto. Each survey shall contain the original signature and seal of the surveyor and any additional matter required by the Title Company. In addition, Borrower shall provide with respect to each Substitute Property a certificate of a professional land surveyor to the effect that the Improvements located upon such Substitute Property are not located in a flood plain area, or, if such Substitute Property is in a flood plain area, Borrower shall deliver on the Closing Date evidence of flood insurance;
(4) a certified copy of a deed conveying to Borrower all right, title and interest in and to the Replaced Property and a letter from a title insurance company acknowledging receipt of such deed and agreeing to record such deed in the real estate records for the county in which the Replaced Property is located;
(5) insurance certificates issued by insurance companies evidencing the insurance coverage required under Section 6.1 hereof;
(6) a Phase I environmental report issued by a qualified environmental consultant at Borrower's expense, and, if recommended by the Phase I environmental report, a Phase II environmental report, which conclude that the Substitute Property does not contain any Hazardous Substance except for nominal amounts of such substances commonly incorporated in or used in the operation of properties similar to the Substitute Property (in either case in compliance with all Environmental Laws). If any such report discloses the presence of any Hazardous Substance, such report shall include an estimate of the cost of any related remediation and Borrower shall deposit with Lender an amount equal to one hundred fifty percent (150%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (A) an update to such report indicating that there is no longer any Hazardous Substance on the Substitute Property except for nominal amounts of such substances commonly incorporated in or used in the operation of properties similar to the Substitute Property (in either case in compliance with all Environmental Laws) and (B) paid receipts indicating that the costs of all such remediation work have been paid;
(7) payments of or reimbursement for all costs and expenses incurred by Lender (including, without limitation, reasonable attorneys' fees and disbursements) in connection with the substitution, and Borrower shall have paid all recording charges, filing fees, taxes or other expenses (including, without limitation, mortgage and intangibles taxes and documentary stamp taxes) payable in connection with the substitution. Borrower shall have paid all costs and expenses of the Rating Agencies incurred in connection with the substitution;
(8) an endorsement to the Title Insurance Policy insuring the Lien of the Security Instrument encumbering the Substitute Property insuring that the Substitute Property constitutes a separate tax lot or, if such an endorsement is not available in the State in which the Substitute Property is located, a letter from the title insurance company issuing such Title Insurance Policy or of an opinion of competent counsel in the State where such Substitute Property is located, stating that the Substitute Property constitutes a separate tax lot or a letter from the appropriate authority stating that the Substitute Property constitutes a separate tax lot;
(9) a Physical Conditions Report with respect to the Substitute Property stating that the Substitute Property and its use comply in all material respects with all applicable Legal Requirements (including, without limitation, zoning, subdivision and building laws) and that the Substitute Property is in good condition and repair and free of damage or waste. If compliance with any Legal Requirements are not addressed by the Physical Conditions Report, such compliance shall be confirmed by delivery to Lender of a certificate of an architect licensed in the State in which the Substitute Property is located, a letter from the municipality in which such Property is located, a certificate of a surveyor that is licensed in the State in which the Substitute Property is located (with respect to zoning and subdivision laws), an ALTA 3.1 zoning endorsement to the Title Insurance Policy delivered pursuant to clause (2) above (with respect to zoning laws) or a subdivision endorsement to the Title Insurance Policy delivered pursuant to clause (2) above (with respect to subdivision laws). If the Physical Conditions Report recommends that any repairs be made with respect to the Substitute Property, such Physical Conditions Report shall include an estimate of the cost of such recommended repairs and Borrower shall deposit with Lender an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (A) an update to such Physical Conditions Report or a letter from engineer that prepared such Physical Conditions Report indicating that the recommended repairs were completed in good manner and (B) paid receipts indicating that the costs of all such repairs have been paid;
(10) annual operating statements and occupancy statements for the Substitute Property for the most current completed fiscal year and a current operating statement for the Replaced Property, each certified to Lender as being true and correct, and a certificate from Borrower certifying that there has been no adverse change in the financial condition of the Substitute Property since the date of such operating statements;
Appears in 1 contract
Samples: Loan Agreement (U-Store-It Trust)
Conditions to Substitution. In addition As a condition precedent to CAR being required to make the requirements Substitution Decision (as defined in Section 2.7(b5 hereof ) above, substitution of any Property pursuant to this Section 2.7 shall be subject to the satisfaction each of the followingfollowing conditions (each a “CARMAX Condition” and collectively the “CARMAX Conditions”) must be satisfied with respect to each Replacement Property within ninety (90) days of the Notification Date (the “Substitution Review Period”). The failure to satisfy each of the CARMAX Conditions within the Substitution Review Period, all of which unless such CARMAX Condition has been deemed satisfied in accordance with this Section, shall be prepared or obtained at Borrower's expense:cause the Substitution Offer Notice and Offer to Substitute to lapse.
(i) simultaneously with Title to each Replacement Property shall be marketable and CARMAX shall provide to CAR and Lender (as defined in Section 5 hereof) a commitment for owner’s and lender’s policies of title insurance (including the Substitutionendorsements listed in Exhibit 4.2 to the Purchase Agreement where the same are available in the jurisdiction in which the Replacement Property is located), Borrower shall convey fee simple at normal rates, evidencing that title to the Replaced each Replacement Property to a Person is free of all defects other than Borrower;customary utility easements and other matters of title that do not render title to such Replacement Property unmarketable or not mortgageable or that do not materially affect the value or use of such Replacement Property as an automobile retail sales facility.
(ii) Intentionally Deleted;CARMAX shall provide to CAR and Lender evidence in reasonable detail that each Replacement Property is properly zoned for use as an automobile retail sales facility and that each Replacement Property is not in violation of any zoning, planning, subdivision or similar law or regulation (the provision of endorsements to the title commitments required by Section 4(i) hereof being hereby agreed to constitute such evidence, with respect to zoning and subdivision compliance).
(iii) Intentionally Deleted;CARMAX shall provide to CAR and Lender an ALTA survey for each Replacement Property, which survey shall be prepared in compliance with Exhibit 4.2 of the Purchase Agreement and shall be subject only to exceptions which do not materially affect the value or use of such Replacement Property as an automobile retail sales facility or do not render such Replacement Property unmarketable or not mortgageable.
(iv) receipt by CARMAX shall provide to CAR and Lender a certification that CARMAX can provide the Representations and Warranties (as defined in Section 6(a)(i) hereof) regarding each Replacement Property on the Notification Date and the Rating Agencies Substitution Date (as defined in Section 6 hereof).
(v) CARMAX shall provide an engineering report for each Replacement Property from an engineer acceptable to CAR and Lender in CAR’s and Lender’s reasonable judgment (except that any engineer supplying a report in connection with CAR’s purchase of written notice thereof from Borrower the Proposed Substitution Property shall be deemed acceptable hereunder) evidencing that there are no property defects with respect thereto.
(vi) The purchase price of any Replacement Property shall not exceed the Allocated Property Value (as defined in Section 6(a)(ii) herein) of a Substitution Property by more than One Million Dollars ($1,000,000); and the limitation in Section 6(b) hereof has not and will not be exceeded.
(vii) CAR shall have received an MAI appraisal for each Replacement Property, performed at CARMAX’s expense by a commercial real estate appraiser having at least ten (10) years’ experience in appraising similar properties, (aa) evidencing that such Replacement Property has a fair market value approximately equal to, but in no event less than, the Allocated Property Value (as defined in Section 6(a)(ii) hereof) of the Proposed Substitution Property and (bb) the appraisal is in a form, scope and substance reasonably acceptable to CAR. Within ten (10) days after receipt of the Substitution Offer Notice, CAR shall order such appraisal(s) with instructions to the appraiser to complete the appraisal within thirty (30) days before thereafter. If CAR fails to obtain the date completion of the proposed appraisal prior to the expiration of the Substitution (Review Period, this condition shall be deemed satisfied for purposes of this Substitution Agreement. Completion of the "SUBSTITUTION DATE"), together with (1) written evidence appraisal shall not be construed or interpreted as satisfying the condition that the property proposed appraisal be reasonably acceptable to be a Substitute Property complies with Section 2.7(b) above CAR in form, scope and (2) such other information, including financial information, as Lender or the Rating Agencies may request;
(v) Lender's receipt of written affirmation from the Rating Agencies that the ratings of the Securities immediately prior to such Substitution will not be qualified, downgraded or withdrawn as a result of such Substitution, which affirmation may be granted or withheld in the Rating Agencies' sole and absolute discretion;
(vi) delivery to Lender of an opinion of counsel opining as to the enforceability of the Substitute Security Instrument with respect to the Substitute Property in substantially the same form and substance as the opinion of counsel concerning enforceability originally delivered at the Closing Date in connection with the Replaced Property, with reasonable allowance for variations in applicable State law, and a Nondisqualification Opinion and a Tax Opinion;
(vii) no Event of Default shall have occurred and be continuing;substance.
(viii) CAR shall have received a current “Phase I” environmental audit report for each Replacement Property, prepared at CARMAX’s expense by an environmental engineer acceptable to CAR and Lender in CAR’s and such Lender’s reasonable judgment (except that any environmental engineer supplying a report in connection with CAR’s purchase of the representations and warranties set forth in this Agreement, in the Security Instrument and the Loan Documents applicable to the Replaced Proposed Substitution Property shall be true deemed acceptable hereunder), indicating that no Hazardous Conditions or violations of Environmental Laws (each as defined in the Purchase Agreement) exist on such Replacement Property and correct recommending no further action. Within ten (except as to title exceptions10) as days after receipt of the Substitution Offer Notice, CAR shall order such report(s) with instructions to the Substitute Property on environmental engineer to complete the report(s) within thirty (30) days thereafter. If CAR fails to obtain the above referenced environmental audit report prior to the expiration of the Substitution Date in all material respects;Review Period, this condition shall be deemed satisfied for purposes of this Substitution Agreement.
(ix) delivery There is no default by CARMAX under this Substitution Agreement or Event of Default under any Lease for any Proposed Substitution Property. Notwithstanding the foregoing, if, during the 90-day Substitution Review Period referred to Lender above, a Phase I environmental audit report is obtained that indicates the need for a “Phase II” audit, at CARMAX’s request (and arrangement for payment of a copy of the organizational documents of Borrower and all amendments thereto, certified as true, complete and correct as of the date of delivery by an Officer's Certificate; a certificate from the secretary of the State or other applicable State official or officer in Borrower's State of formation certifying that it is duly formed and in good standing (with tax clearance, if applicable), if available, and certificates from the Secretary of State of the State in which the Substitute Property is located (if such certificates are issued), certifying as to Borrower's good standing as a limited liability company in such State (with tax clearance, if applicable); delivery of an Officer's Certificate, dated costs associated therewith) the Substitution Date Review Period shall be extended for up to an additional 90 days and signed on behalf of its Secretary or Assistant Secretary, certifying the names of the officers of the general partner of the sole member of Borrower authorized CAR shall use all commercially reasonable efforts to execute and deliver, in the name and on behalf of Borrowerprocure such Phase II report, the Security Instrument, Assignment of Leases, UCC Financing Statements, and the other Loan Documents pertaining to such Substitute Property to which Borrower is a party, together with the original (not photocopied) signatures of such officers;
(x) delivery to Lender of an Officer's Certificate certifying to the veracity of the statements in Subsections 2.7(b)(ii), 2.7(b)(iii), 2.7(b)(iv), 2.7(b)(vii), 2.7(c)(viii), and 2.7(c)(ix) hereof;
(xi) delivery to Lender of originals of the following:
(1) Borrower shall have executed, acknowledged and delivered to Lender a Security Instrument, an Assignment of Leases and two UCC Financing Statements (to the extent execution and acknowledgment are required) accompanying engineer’s recommendations with respect to any further testing, monitoring and/or remediation of environmental condition such engineers deem necessary, and an estimate by such engineers of the Substitute Property, together with a letter from Borrower countersigned by a title insurance company acknowledging receipt maximum expected costs of such Security Instrumentfurther testing, Assignment of Leases monitoring and/or remediation. If, during such extended Substitution Review Period (a) such Phase II report, recommendations and UCC-1 Financing Statements estimate are obtained; (b) the report, recommendations and agreeing estimate are acceptable to record or file, as applicable, such Security Instrument, Assignment of Leases CAR and Rents and, with regard to the UCC-1 Financing Statements, if recordation or a system of filing is accepted or established in the applicable jurisdiction, one of the UCC-1 Financing Statements in the real estate records for the county in which the Substitute Property is located and, subject to local law, rule or custom, to file one of the UCC-1 Financing Statements in the office of the Secretary of State of the State in which Borrower has been formed, so as to effectively create upon such recording and filing valid and enforceable Liens upon the Substitute Property, of the requisite priority, in favor of its Lender (or such other trustee as may be desired under local law), subject only to if any) in their respective reasonable judgment; (c) the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents. The Security Instrument, Assignment of Leases and UCC-1 Financing Statements shall be the same in form and substance as the counterparts estimate of such documents executed and delivered with respect to the related Replaced Property subject to modifications reflecting the Substitute Property as the Property that maximum expected costs is the subject of such documents and such modifications reflecting the laws of the State in which the Substitute Property is located as shall be recommended by the counsel admitted to practice in such State and delivering the opinion of counsel as to the enforceability of such documents required pursuant to this Section. The Security Instrument encumbering the Substitute Property shall secure all amounts evidenced by the Note, provided that in the event that the jurisdiction in which the Substitute Property is located imposes a mortgage recording, intangibles $75,000 or similar tax and does not permit the allocation of indebtedness for the purpose of determining the amount of such tax payable, the principal amount secured by such Security Instrument shall be equal to one hundred fifty percent (150%) of the amount of the Loan allocated to the Substitute Property;
(2) Lender shall have received (A) any "tie-in" or similar endorsement to each Title Insurance Policy insuring the Lien of the Security Instrument as of the date of the substitution available with respect to the Title Insurance Policy insuring the Lien of the Security Instrument with respect to the Substitute Property and (B) a Title Insurance Policy (or a marked, signed and redated commitment to issue such Title Insurance Policy) insuring the Lien of the Security Instrument encumbering the Substitute Property, issued by the title company that issued the Title Insurance Policies insuring the Lien of the Security Instrument and dated as of the date of the substitution, with reinsurance and direct access agreements that replace such agreements issued in connection with the Title Insurance Policy insuring the Lien of the Security Instrument encumbering the Replaced Property. The Title Insurance Policy issued with respect to the Substitute Property shall (1) provide coverage in the amount of the Release Amount applicable to the Substitute Property if the "tie-in" or similar endorsement described above is available or, if such endorsement is not available, in an amount equal to one hundred fifty percent (150%) of the Release Amount applicable for the Substitute Property, (2) insure Lender that the relevant Security Instrument creates a valid first lien on the Substitute Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (3) contain such legally available endorsements and affirmative coverages as are contained in the Title Insurance Policies insuring the Liens of the existing Security Instrumentless, and (4d) name CARMAX has made arrangements reasonably satisfactory to CAR and its Lender as (if any) in their respective judgments to prosecute and fund any further testing, monitoring and/or remediation, then the insured. Lender also shall have received copies of paid receipts showing that all costs of or premiums for such endorsements and Title Insurance Policies have been paid;
condition set forth in subsection (3) a current as-built land title Survey and a certificate from a professional licensed land surveyor with respect to such Substitute Property, certified to the Title Company and Lender, and prepared in accordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys meeting the classification of an "Urban Survey" and the following additional items from the list of "Optional Survey Responsibilities and Specifications" (Table Aviii) shall be added to each survey 2, 3, 4, 6, 8, 9, 10, 11(a) (as to utilities, surface matters only) and 13, and showing the location, dimensions and area of each parcel of the Substitute Property, including all existing buildings and improvements, utilities, parking areas and spaces, internal streets, if any, external streets, rights-of-way, as well as any easements, setback violations or encroachments on such Substitute Property and identifying each item with its corresponding exception, if any, in the title policy relating thereto. Each survey shall contain the original signature and seal of the surveyor and any additional matter required by the Title Company. In addition, Borrower shall provide with respect to each Substitute Property a certificate of a professional land surveyor to the effect that the Improvements located upon such Substitute Property are not located in a flood plain area, or, if such Substitute Property is in a flood plain area, Borrower shall deliver on the Closing Date evidence of flood insurance;
(4) a certified copy of a deed conveying to Borrower all right, title and interest in and to the Replaced Property and a letter from a title insurance company acknowledging receipt of such deed and agreeing to record such deed in the real estate records for the county in which the Replaced Property is located;
(5) insurance certificates issued by insurance companies evidencing the insurance coverage required under Section 6.1 hereof;deemed satisfied.
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