Substitution of a Mortgaged Site. (A) Subject to the terms and conditions set forth in this Section 11.5, the Borrowers shall have the right to obtain a release of the lien of the applicable Deed of Trust (and the related Loan Documents) encumbering one or more Mortgaged Sites and dispose of such Mortgaged Sites (for purposes of this section only, hereinafter referred to as, the “Substituted Sites”) by (i) substituting therefor one or more properties of like kind and quality (which shall include, among other things, the geographic diversity of the Substituted Sites and markets and submarkets with, among other similarities, similar demographics, populations, absorption trends, accessibility and visibility) or (ii), with respect to any of the Ground Lease Sites, subjecting the applicable Borrower’s interest in such Ground Lease Site to the lien of a security instrument in favor of the Lender as security for the Loan (individually, a “Replacement Site” and, collectively, the “Replacement Sites”). In addition, any such substitution (each, a “Substitution”) shall be subject, in each case, to the satisfaction of the following conditions precedent: (A) No Amortization Period or Event of Default shall have occurred and be continuing, unless the release of the Substituted Site will cure such Event of Default. (B) The Borrowers shall have given the Lender at least forty five (45) days prior written notice of its election to seek a Substitution. (C) The Lender shall have received a copy of the instrument conveying to the applicable Borrower the transferred interests and, if such instrument creates a leasehold interest or an easement interest in favor of the Borrowers, such instrument shall be reasonably satisfactory to the Lender and, if the Substitution is occurring prior to the First Amendment Effective Date, shall contain such Lender protections as are contained in similar instruments accepted by the Lender at the Original Closing, and be accompanied by an estoppel or similar instrument reasonably satisfactory to the Lender. (D) The Borrowers shall have executed, acknowledged and delivered to the Lender (i) a mortgage, a deed of trust, or a deed to secure debt, as applicable, with respect to the Replacement Sites, so as to effectively create upon recording and filing valid and enforceable liens upon the Replacement Sites, of first priority, in favor of the Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances, (ii) an environmental indemnity with respect to the Replacement Sites, (iii) written confirmation from SBA Holdings, the Guarantor and each Additional Guarantor regarding such Substitution, (iv) modifications to the Loan Documents as the Lender deems desirable to properly reflect the Substitution, and (v) such other documents and agreements as reasonably requested to evidence the Substitution. The security instrument and environmental indemnity shall be in the same form ‑105‑ and substance as the counterparts of such documents executed and delivered with respect to the Substituted Sites, subject to modifications reflecting the Replacement Sites as the property that is the subject of such documents and such modifications reflecting the laws of the State in which the Replacement Sites are located. (E) The Lender shall have received (i) a title insurance policy (or a marked, signed and predated commitment to issue such title insurance policy) reasonably satisfactory to the Lender insuring the lien of the security instrument encumbering the Replacement Sites, issued by the Title Company and dated as of the date of the Substitution, (ii) reasonably requested endorsements to the title policies delivered to the Lender in connection with the Deeds of Trust to reflect the Substitution and (iii) copies of paid receipts showing that all premiums in respect of such endorsements and title insurance policies have been paid; provided, however, that, if the Substitution is occurring on or after the Second Amendment Effective Date, no title insurance policy or endorsements to title policies shall be required to be delivered to the Lender in respect of the Replacement Sites if (x) the Borrowers shall have delivered Rating Agency Confirmation to the Lender or (y) the Substituted Sites were not part of the Collateral on April 18, 2013. (F) The Borrowers shall deliver or cause to be delivered to the Lender resolutions, if any are required, authorizing the Substitution and any actions taken in connection with such Substitution. (G) The Lender shall have received such opinions as may be reasonably requested with respect to the Loan Documents delivered with respect to the Replacement Sites, the Borrowers’ qualification, and authorization substantially in the form delivered at the Original Closing, together with an update of the insolvency opinion delivered at the Original Closing indicating that the Substitution does not affect the opinions set forth therein, and an opinion of counsel stating that the Substitution does not constitute a “significant modification” of the Loan or “deemed exchange” of the Notes under Section 1001 of the IRC. (H) The Borrowers shall have paid or reimbursed the Lender for all third party out‑of‑pocket costs and expenses incurred by the Lender (including, without limitation, reasonable attorneys fees and disbursements) in connection with the Substitution and the Borrowers shall have paid all Rating Agency fees, 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. (I) The Lender shall have received a new or refreshed ASTM compliant Phase I environmental report prepared by a consultant reasonably acceptable to the Lender on the Replacement Site, together with a Phase II environment assessment report (if any database search Phase I environmental report reveals any condition that in the Lender’s reasonable judgment warrants such a report) which concludes that any such Replacement Site does not contain any Hazardous Materials (except for cleaning and other products used in connection with the routine maintenance or repair of the subject property) and is not in material violation of any Environmental Laws. (J) The Lender shall have received a physical conditions report with respect to the Replacement Sites from a nationally recognized structural consultant approved by the ‑106‑ Lender in a form recognized and approved by the Lender prior to such release and Substitution stating that the Replacement Sites and their use comply in all material respects with applicable legal requirements of the Governmental Authorities customarily provided in such reports and that the Replacement Sites are in good condition and repair and free of damage or waste. (K) The Rating Agencies shall have received prior notice of the Substitution from the Borrowers and the Lender shall have received from the Borrowers either (x) Rating Agency Confirmation with respect to the Substitution or (y) evidence in form and substance satisfactory to the Lender that each of the following is or will be true after giving effect to the Substitution: (1) the aggregate Allocated Loan Amounts of all Substituted Sites and Substituted Other Pledged Sites during any calendar year do not exceed five percent (5%) of the monthly average of the Principal Amount of the Loan for such calendar year (with any excess limit permitted to be carried over into subsequent years, subject to an aggregate limit of 25% of the monthly average of the principal amount of the Loan for the previous five (5) year period); (2) the percentage of Operating Revenues from the Replacement Sites represented by telephony tenants and non-telephony investment grade tenants (taken together) is, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, 90% or greater or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, not materially less than (and in any event less than 95% of) such percentage immediately prior to the Substitution; (3) if any of the Replacement Sites will be subject to a Ground Lease, all such Ground Leases will have, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, a remaining term (including all available extensions) of not less than the average remaining term (including all available extensions) of the Ground Leases on all Sites subject to Ground Leases prior to the Substitution (in both cases, excluding any Ground Leases of an original term of ninety (90) years or greater in duration) or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, a remaining term (including all available extensions) that is not shorter than one year shorter than the average remaining term (calculated on a net cash flow weighted average basis and including all available extensions) of the Ground Leases on all Sites subject to Ground Leases prior to the Substitution (in both cases, excluding any Ground Leases of an original term of ninety (90) years or greater in duration) from the date of the Substitution; (4) the weighted average remaining term of the Leases (by revenue) with respect to the Replacement Sites is, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, equal to or longer than the weighted average remaining term of the Leases (by revenue) with respect to all Sites prior to the Substitution or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, not shorter than one year shorter than the weighted average remaining term of the Leases (by revenue) with respect to all Sites prior to the Substitution; (5) the Maintenance Capital Expenditures for the Replacement Sites (taken together and averaged on a per site basis) are not materially greater than the Maintenance ‑107‑ Capital Expenditures for the Substituted Sites (taken together and averaged on a per site basis); (6) after giving effect to the Substitution, the Debt Service Coverage Ratio will be, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, equal to or greater than the Debt Service Coverage Ratio as of the date immediately preceding the Substitution or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, at least within 0.2x of, the Debt Service Coverage Ratio as of the date immediately preceding the Substitution; and (7) the aggregate value of the Replacement Sites, as established by the Borrowers to the reasonable satisfaction of the Lender, is at least equal to the aggregate value of the Substituted Sites as of the date immediately preceding the Substitution (such valuation to be performed in a manner consistent with industry standards for the valuation of tower Sites). (L) On or prior to the date of Substitution, the Borrowers shall deliver to the Lender an Officer’s Certificate dated as of the date of Substitution certifying that the requirements set forth in this Section 11.5 have been satisfied and remaking the representations and warranties set forth in Sections 4.5 through 4.8, Section 4.25(A) (if a Substituted Site is a Ground Lease Site) and Section 4.26 (if a Substituted Site is an Easement Site) with respect to the Substituted Site as of that date. (M) If such Substitution is occurring prior to the Third Amendment Effective Date, immediately following such Substitution, the Substituted Sites will be owned by a Person other than the Borrowers or any of their Affiliates (unless such Substitution is effectuated to cure a Default, in which event the Substituted Sites may be owned by an Affiliate of the Borrowers). (N) If during a Special Servicing Period, the Servicer consents to such Substitution. (O) Upon the satisfaction of the foregoing conditions precedent, as reasonably determined by the Lender, (i) the Lender will release its lien from the Substituted Sites, (ii) the Replacement Sites shall be deemed to be “Mortgaged Sites” hereunder, (iii) all references herein to the Deeds of Trust shall include the applicable security instrument encumbering the Replacement Sites, and (iv) the applicable Allocated Loan Amount with respect to the Substituted Sites shall be deemed to be the Allocated Loan Amount with respect to the Replacement Sites for all purposes hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Sba Communications Corp)
Substitution of a Mortgaged Site. (A) Subject to the terms and conditions set forth in this Section 11.5, the Borrowers shall have the right to obtain a release of the lien of the applicable Deed of Trust (and the related Loan Documents) encumbering one or more Mortgaged Sites and dispose of such Mortgaged Sites (for purposes of this section only, hereinafter referred to as, the “Substituted Sites”) by (i) substituting therefor one or more properties of like kind and quality (which shall include, among other things, the geographic diversity of the Substituted Sites and markets and submarkets with, among other similarities, similar demographics, populations, absorption trends, accessibility and visibility) or (ii), with respect to any of the Ground Lease Sites, subjecting the applicable Borrower’s interest in such Ground Lease Site to the lien of a security instrument in favor of the Lender as security for the Loan (individually, a “Replacement Site” and, collectively, the “Replacement Sites”). In addition, any such substitution (each, a “Substitution”) shall be subject, in each case, to the satisfaction of the following conditions precedent:
(A) No Amortization Period or Event of Default shall have occurred and be continuing, unless the release of the Substituted Site will cure such Event of Default.
(B) The Borrowers shall have given the Lender at least forty five (45) days prior written notice of its election to seek a Substitution.
(C) The Lender shall have received a copy of the instrument conveying to the applicable Borrower the transferred interests and, if such instrument creates a leasehold interest or an easement interest in favor of the Borrowers, such instrument shall be reasonably satisfactory to the Lender andLender, if the Substitution is occurring prior to the First Amendment Effective Date, shall contain such Lender protections as are contained in similar instruments accepted by the Lender at the Original Closing, and be is accompanied by an estoppel or similar instrument reasonably satisfactory to the Lender.
(D) The Borrowers shall have executed, acknowledged and delivered to the Lender (i) a mortgage, a deed of trust, or a deed to secure debt, as applicable, with respect to the Replacement Sites, so as to effectively create upon recording and filing valid and enforceable liens upon the Replacement Sites, of first priority, in favor of the Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances, (ii) an environmental indemnity with respect to the Replacement Sites, (iii) written confirmation from SBA Holdings, Holdings and the Guarantor and each Additional Guarantor regarding such Substitution, (iv) modifications to the Loan Documents as the Lender deems desirable to properly reflect the Substitution, and (v) such other documents and agreements as reasonably requested to evidence the Substitution. The security instrument and environmental indemnity shall be in the same form ‑105‑ and substance as the counterparts of such documents executed and delivered with respect to the Substituted Sites, subject to modifications reflecting the Replacement Sites as the property that is the subject of such documents and such modifications reflecting the laws of the State in which the Replacement Sites are located.
(E) The Lender shall have received (i) a title insurance policy (or a marked, signed and predated commitment to issue such title insurance policy) reasonably satisfactory to the Lender insuring the lien of the security instrument encumbering the Replacement Sites, issued by the Title Company and dated as of the date of the Substitution, and (ii) reasonably requested endorsements to the title policies delivered to the Lender in connection with the Deeds of Trust to reflect the Substitution and (iii) Substitution. Lender also shall have received copies of paid receipts showing that all premiums in respect of such endorsements and title insurance policies have been paid; provided, however, that, if the Substitution is occurring on or after the Second Amendment Effective Date, no title insurance policy or endorsements to title policies shall be required to be delivered to the Lender in respect of the Replacement Sites if (x) the Borrowers shall have delivered Rating Agency Confirmation to the Lender or (y) the Substituted Sites were not part of the Collateral on April 18, 2013.
(F) The Borrowers shall deliver or cause to be delivered to the Lender resolutions, if any are required, authorizing the Substitution and any actions taken in connection with such Substitution.
(G) The Lender shall have received such opinions as may be reasonably requested with respect to the Loan Documents delivered with respect to the Replacement Sites, the Borrowers’ Borrower’s qualification, and authorization substantially in the form delivered at the Original Closing, together with an update of the insolvency opinion delivered at the Original Closing indicating that the Substitution does not affect the opinions set forth therein, and an opinion of counsel stating that the Substitution does not constitute a “significant modification” of the Loan or “deemed exchange” of the Notes under Section 1001 of the IRC.
(H) The Borrowers shall have paid or reimbursed the Lender for all third party out‑of‑pocket out-of-pocket costs and expenses incurred by the Lender (including, without limitation, reasonable attorneys fees and disbursements) in connection with the Substitution and the Borrowers shall have paid all Rating Agency fees, 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.
(I) The Lender shall have received a new or refreshed ASTM compliant Phase I environmental report prepared by a consultant reasonably acceptable to the Lender on the Replacement Site, together with a Phase II environment assessment report (if any database search Phase I environmental report reveals any condition that in the Lender’s reasonable judgment warrants such a report) which concludes that any such Replacement Site does not contain any Hazardous Materials (except for cleaning and other products used in connection with the routine maintenance or repair of the subject property) and is not in material violation of any Environmental Laws.
(J) The Lender shall have received a physical conditions report with respect to the Replacement Sites from a nationally recognized structural consultant approved by the ‑106‑ Lender in a form recognized and approved by the Lender prior to such release and Substitution stating that the Replacement Sites and their its use comply in all material respects with applicable legal requirements of the Governmental Authorities customarily provided in such reports and that the Replacement Sites are is in good condition and repair and free of damage or waste.
(K) The Rating Agencies shall have received prior notice of the Substitution from the Borrowers and the Lender shall have received from the Borrowers either (x) Rating Agency Confirmation with respect to the Substitution or (y) evidence in form and substance satisfactory to the Lender that each of the following is or will be true after giving effect to the Substitution:
If (1) the aggregate Allocated Loan Amounts Amount of all Substituted Sites and Substituted Other Pledged Sites during any calendar year do not exceed exceeds five percent (5%) of the monthly average of the Principal Amount of the Loan for such calendar year (with any excess limit permitted to be carried over into subsequent years, subject to an aggregate limit of 25% of the monthly average of the principal amount of the Loan for the previous five (5) year period, provided that, if the date of determination is less than five years from the Closing Date, such calculation shall be based on the monthly average of the principal amount of the Loan for the period from the Closing Date to the previous calendar month);
, (2) the percentage of Operating Revenues from the applicable Replacement Sites represented by telephony tenants and non-telephony investment grade tenants (taken together) is, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, not 90% or greater orgreater, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, not materially less than (and in any event less than 95% of) such percentage immediately prior to the Substitution;
(3) if any of the Replacement Substitute Sites will be subject to a Ground Lease, all such Ground Leases will have, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, Lease with a remaining term (including all available extensions) of not less than the average remaining term (including of all available extensions) of the Ground Leases on all other Sites subject to Ground Leases prior to the Substitution (in both cases, excluding any Ground Leases of an original term of ninety (90) 90 years or greater in duration) or), (y) if the Substitution is occurring on or after the Second Amendment Effective Date, a remaining term (including all available extensions) that is not shorter than one year shorter than the average remaining term (calculated on a net cash flow weighted average basis and including all available extensions) of the Ground Leases on all Sites subject to Ground Leases prior to the Substitution (in both cases, excluding any Ground Leases of an original term of ninety (90) years or greater in duration) from the date of the Substitution;
(4) the weighted average remaining term of the Leases (by revenue) with respect to the Replacement Sites is, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, not equal to or longer than the weighted average remaining term of the Leases (by revenue) with respect to all Sites prior to the Substitution orother Sites, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, not shorter than one year shorter than the weighted average remaining term of the Leases (by revenue) with respect to all Sites prior to the Substitution;
(5) the Maintenance Capital Expenditures for the Replacement Sites (taken together and averaged on a per site basis) are not materially greater than the Maintenance ‑107‑ Capital Expenditures for the Substituted Sites (taken together and averaged on a per site basis);
Sites, (6) after giving effect to the Substitution, the Debt Service Coverage Ratio will be, (x) if of the Substitution Loan is occurring prior to the Second Amendment Effective Date, not at least equal to or greater than the Debt Service Coverage Ratio of the Loan as of the date immediately preceding the Substitution or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, at least within 0.2x of, the Debt Service Coverage Ratio as of the date immediately preceding the Substitution; and
(7) the aggregate value of the Replacement Sites, as established by the Borrowers to the reasonable satisfaction of the Lender, is shall not be at least equal to the aggregate value of the Substituted Sites as of the date immediately preceding the Substitution (such valuation to be performed in a manner consistent with industry standards for the valuation of tower Sites), the Borrowers shall have delivered Rating Agency Confirmation.
(L) On or prior to the date of Substitution, the Borrowers shall deliver to the Lender an Officer’s Certificate dated as of the date of Substitution certifying that the requirements set forth in this Section 11.5 have been satisfied and remaking the representations and warranties set forth in Sections 4.5 through 4.8, Section 4.25(A) (if a Substituted Site is a Ground Lease Site) and Section 4.26 (if a Substituted Site is an Easement Site) with respect to the Substituted Site as of that date.
(M) If such Substitution is occurring prior to the Third Amendment Effective Date, immediately Immediately following such Substitution, the Substituted Sites will be owned by a Person other than the Borrowers or any of their Affiliates (unless such Substitution is effectuated to cure a Default, in which event the Substituted Sites may be owned by an Affiliate of the Borrowers).
(N) If during a Special Servicing Period, the Servicer consents to such Substitution.
(O) Upon the satisfaction of the foregoing conditions precedent, as reasonably determined by the Lender, (i) the Lender will release its lien from the Substituted Sites, (ii) the Replacement Sites shall be deemed to be “Mortgaged Sites” hereunder, (iii) all references herein to the Deeds of Trust shall include the applicable security instrument encumbering the Replacement Sites, and (iv) the applicable Allocated Loan Amount with respect to the Substituted Sites shall be deemed to be the Allocated Loan Amount with respect to the Replacement Sites for all purposes hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Sba Communications Corp)
Substitution of a Mortgaged Site. (A) Subject to the terms and conditions set forth in this Section 11.5, the Borrowers shall have the right to obtain a release of the lien of the applicable Deed of Trust (and the related Loan Documents) encumbering one or more Mortgaged Sites and dispose of such Mortgaged Sites (for purposes of this section only, hereinafter referred to as, the “Substituted Sites”) by (i) substituting therefor one or more properties of like kind and or better quality (which shall include, among other things, the geographic diversity of the Substituted Sites and markets and submarkets with, among other similarities, similar demographics, populations, absorption trends, accessibility and visibility, taken as a whole) or (ii), ) with respect to any of the Ground Lease Sites, subjecting the applicable Borrower’s interest in such Ground Lease Site to the lien of a security instrument in favor of the Lender as security for the Loan (individually, a “Replacement Site” and, collectively, the “Replacement Sites”). In addition, any such substitution (each, a “Substitution”) shall be subject, in each case, to the satisfaction of the following conditions precedent:
(A) No Amortization Period The Release or Event of Default Substitution Conditions shall have occurred and be continuing, been satisfied (unless the release Substitution is in connection with the cure of a breach of a representation, warranty, covenant or other default hereunder with respect to the Substituted Site, for which the Release or Substitution Conditions need not be satisfied; provided, however, that in such case on or prior to the date of Substitution, the Borrowers shall deliver an Officer’s Certificate to Lender dated as of the Substituted Site will cure date of such Event of DefaultSubstitution certifying that the requirements set forth in this Section 11.5 have been satisfied).
(B) The Borrowers shall have given the Lender at least forty five (45) days prior written notice of its election to seek a Substitution.
(C) The Lender shall have received a copy of the instrument conveying to the applicable Borrower the transferred interests and, if such instrument creates a leasehold interest or an easement interest in favor respect of the Borrowers, such instrument shall be reasonably satisfactory to the Lender and, if the Substitution is occurring prior to the First Amendment Effective Date, shall contain such Lender protections as are contained in similar instruments accepted by the Lender at the Original Closing, and be accompanied by an estoppel or similar instrument reasonably satisfactory to the LenderReplacement Site.
(D) The Borrowers shall have executed, acknowledged and delivered to the Lender (i) a mortgage, a deed of trust, or a deed to secure debt, as applicable, with respect to the Replacement Sites, so as to effectively create upon recording and filing valid and enforceable liens upon the Replacement Sites, of first priority, in favor of the Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances, (ii) an environmental indemnity with respect to the Replacement Sites, (iii) written confirmation from SBA Holdings, the Parent Guarantor and each Additional Guarantor regarding such Substitution, (iv) modifications to the Loan Documents as the Lender deems desirable necessary to properly reflect the Substitution, and (v) such other documents and agreements as reasonably requested to evidence the Substitution. The security instrument and environmental indemnity shall be in the same form ‑105‑ and substance as the counterparts of such documents executed and delivered with respect to the Substituted Sites, subject to modifications reflecting the Replacement Sites as the property that is the subject of such documents and such modifications reflecting the laws of the State in which the Replacement Sites are located.
(E) The Lender shall have received (i) a title insurance policy (or a marked, signed and predated commitment to issue such title insurance policy) reasonably satisfactory to the Lender insuring the lien of the security instrument encumbering the Replacement Sites, issued by the Title Company and dated as of the date of the Substitution, and (ii) reasonably requested endorsements to the title policies delivered to the Lender in connection with the Deeds of Trust to reflect the Substitution Substitution; provided, that a title insurance policy which is similar in form and (iii) copies of paid receipts showing that all premiums in respect of such endorsements and substance to the title insurance policies have been paid; provided, however, that, if the Substitution is occurring on or after the Second Amendment Effective Date, no title insurance policy or endorsements to title policies shall be required to be delivered to the Lender in respect of the Replacement Mortgaged Sites if (x) delivered on the Borrowers Closing Date shall have delivered Rating Agency Confirmation be satisfactory to the Lender or (y) the Substituted Sites were and not part of the Collateral on April 18, 2013require additional endorsements.
(F) The Borrowers shall deliver or cause to be delivered to the Lender resolutions, if any are required, authorizing the Substitution and any actions taken in connection with such Substitution.
(G) The Lender shall have received such opinions as may be reasonably requested with respect to the Loan Documents delivered with respect to the Replacement Sites, the Borrowers’ qualificationqualifications, and authorization substantially in the form delivered at the Original Closing, together with an update of the insolvency opinion delivered at the Original Closing indicating that the Substitution does not affect the opinions set forth therein, and an opinion of counsel stating that the Substitution does not constitute a “significant modification” of the Loan or “deemed exchange” of the Notes under Section 1001 of the IRC.
(H) The Borrowers shall have paid or reimbursed the Lender for all third party out‑of‑pocket out-of-pocket costs and expenses incurred by the Lender (including, without limitation, reasonable attorneys attorneys’ fees and disbursements) in connection with the Substitution and the Borrowers shall have paid all Rating Agency fees, 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.
(I) The Lender shall have received a new or refreshed the most recent ASTM compliant Phase I environmental report prepared obtained by a consultant reasonably acceptable to the Lender on Borrowers or any Affiliate thereof regarding the Replacement Site, together with a Phase II environment assessment report (if any database search Phase I environmental report reveals any condition that in the Lender’s reasonable judgment warrants such a report) which concludes that any such Replacement Site does not contain any Hazardous Materials (except for cleaning and other products used in connection with the routine maintenance or repair of the subject property) and is not in material violation of any Environmental Laws.
(J) The Lender shall have received a physical conditions report with respect to the Replacement Sites from a nationally recognized structural consultant approved by the ‑106‑ Lender in a form recognized and approved by the Lender prior to such release and Substitution stating that the Replacement Sites and their use comply in all material respects with applicable legal requirements of the Governmental Authorities customarily provided in such reports and that the Replacement Sites are in good condition and repair and free of damage or waste.
(K) The Rating Agencies shall have received prior notice of the Substitution from the Borrowers and the Lender shall have received from the Borrowers either (x) Rating Agency Confirmation with respect to the Substitution or (y) evidence in form and substance satisfactory to the Lender that each of the following is or will be true after giving effect to the Substitution:
(1) the aggregate Allocated Loan Amounts of all Substituted Sites and Substituted Other Pledged Sites during any calendar year do not exceed five percent (5%) of the monthly average of the Principal Amount of the Loan for such calendar year (with any excess limit permitted to be carried over into subsequent years, subject to an aggregate limit of 25% of the monthly average of the principal amount of the Loan for the previous five (5) year period);
(2) the percentage of Operating Revenues from the Replacement Sites represented by telephony tenants and non-telephony investment grade tenants (taken together) is, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, 90% or greater or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, not materially less than (and in any event less than 95% of) such percentage immediately prior to the Substitution;
(3) if any of the Replacement Sites will be subject to a Ground Lease, all such Ground Leases will have, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, a remaining term (including all available extensions) of not less than the average remaining term (including all available extensions) of the Ground Leases on all Sites subject to Ground Leases prior to the Substitution (in both cases, excluding any Ground Leases of an original term of ninety (90) years or greater in duration) or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, a remaining term (including all available extensions) that is not shorter than one year shorter than the average remaining term (calculated on a net cash flow weighted average basis and including all available extensions) of the Ground Leases on all Sites subject to Ground Leases prior to the Substitution (in both cases, excluding any Ground Leases of an original term of ninety (90) years or greater in duration) from the date of the Substitution;
(4) the weighted average remaining term of the Leases (by revenue) with respect to the Replacement Sites is, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, equal to or longer than the weighted average remaining term of the Leases (by revenue) with respect to all Sites prior to the Substitution or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, not shorter than one year shorter than the weighted average remaining term of the Leases (by revenue) with respect to all Sites prior to the Substitution;
(5) the Maintenance Capital Expenditures for the Replacement Sites (taken together and averaged on a per site basis) are not materially greater than the Maintenance ‑107‑ Capital Expenditures for the Substituted Sites (taken together and averaged on a per site basis);
(6) after giving effect to the Substitution, the Debt Service Coverage Ratio will be, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, equal to or greater than the Debt Service Coverage Ratio as of the date immediately preceding the Substitution or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, at least within 0.2x of, the Debt Service Coverage Ratio as of the date immediately preceding the Substitution; and
(7) the aggregate value of the Replacement Sites, as established by the Borrowers to the reasonable satisfaction of the Lender, is at least equal to the aggregate value of the Substituted Sites as of the date immediately preceding the Substitution (such valuation to be performed in a manner consistent with industry standards for the valuation of tower Sites).
(L) On or prior to the date of Substitution, the Borrowers shall deliver to the Lender an Officer’s Certificate dated as of the date of Substitution certifying that the requirements set forth in this Section 11.5 have been satisfied and remaking the representations and warranties set forth in Sections 4.5 through 4.8, Section 4.25(A) (if a Substituted Site is a Ground Lease Site) and Section 4.26 (if a Substituted Site is an Easement Site) with respect to the Substituted Site as of that date.
(M) If such Substitution is occurring prior to the Third Amendment Effective Date, immediately following such Substitution, the Substituted Sites will be owned by a Person other than the Borrowers or any of their Affiliates (unless such Substitution is effectuated to cure a Default, in which event the Substituted Sites may be owned by an Affiliate of the Borrowers).
(N) If during a Special Servicing Period, the Servicer consents to such Substitution.
(O) Upon the satisfaction of the foregoing conditions precedent, as reasonably determined by the Lender, (i) the Lender will release its lien from the Substituted Sites, (ii) the Replacement Sites shall be deemed to be “Mortgaged Sites” hereunder, (iii) all references herein to the Deeds of Trust shall include the applicable security instrument encumbering the Replacement Sites, and (iv) the applicable Allocated Loan Amount with respect to the Substituted Sites shall be deemed to be the Allocated Loan Amount with respect to the Replacement Sites for all purposes hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (American Tower Corp /Ma/)
Substitution of a Mortgaged Site. (A) Subject to the terms and conditions set forth in this Section 11.5, the Borrowers shall have the right to obtain a release of the lien of the applicable Deed of Trust (and the related Loan Documents) encumbering one or more Mortgaged Sites and dispose of such Mortgaged Sites (for purposes of this section only, hereinafter referred to as, the “Substituted Sites”) by (i) substituting therefor one or more properties of like kind and or better quality (which shall include, among other things, the geographic diversity of the Substituted Sites and markets and submarkets with, among other similarities, similar demographics, populations, absorption trends, accessibility and visibility, taken as a whole) or (ii), ) with respect to any of the Ground Lease Sites, subjecting the applicable Borrower’s interest in such Ground Lease Site to the lien of a security instrument in favor of the Lender as security for the Loan (individually, a “Replacement Site” and, collectively, the “Replacement Sites”). In addition, any such substitution (each, a “Substitution”) shall be subject, in each case, to the satisfaction of the following conditions precedent:
(A) No Amortization Period or Event of Default shall have occurred and be continuing, unless the release of the Substituted Site will cure such Event of Default.
(B) The Borrowers shall have given the Lender at least forty five (45) days prior written notice of its election to seek a Substitution.
(C) The Lender shall have received a copy of the instrument conveying to the applicable Borrower the transferred interests and, if such instrument creates a leasehold interest or an easement interest in favor of the Borrowers, such instrument shall be reasonably satisfactory to the Lender andLender, if the Substitution is occurring prior to the First Amendment Effective Date, shall contain such Lender protections as are contained in similar instruments accepted by the Lender at the Original Closing, and be is accompanied by an estoppel or similar instrument reasonably satisfactory to the Lender.
(D) The Borrowers shall have executed, acknowledged and delivered to the Lender (i) a mortgage, a deed of trust, or a deed to secure debt, as applicable, with respect to the Replacement SitesSites (if necessary to satisfy the requirement specified in clause (K)(2)(z) below), so as to effectively create upon recording and filing valid and enforceable liens upon the Replacement Sites, of first priority, in favor of the Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances, (ii) an environmental indemnity Environmental Indemnity with respect to the Replacement Sites, (iii) written confirmation from SBA Holdings, the Parent Guarantor and each Additional Guarantor regarding such Substitution, (iv) modifications to the Loan Documents as the Lender deems desirable to properly reflect the Substitution, and (v) such other documents and agreements as reasonably requested to evidence the Substitution. The security instrument and environmental indemnity shall be in the same form ‑105‑ and substance as the counterparts of such documents executed and delivered with respect to the Substituted Sites, subject to modifications reflecting the Replacement Sites as the property that is the subject of such documents and such modifications reflecting the laws of the State in which the Replacement Sites are located.
(E) The Lender shall have received (i) a title insurance policy (or a marked, signed and predated commitment to issue such title insurance policy) reasonably satisfactory to the Lender insuring the lien of the security instrument encumbering the Replacement Sites, issued by the Title Company and dated as of the date of the Substitution, and (ii) reasonably requested endorsements to the title policies delivered to the Lender in connection with the Deeds of Trust to reflect the Substitution and (iii) Substitution. Lender also shall have received copies of paid receipts showing that all premiums in respect of such endorsements and title insurance policies have been paid; provided, however, that, if the Substitution is occurring on or after the Second Amendment Effective Date, no title insurance policy or endorsements to title policies shall be required to be delivered to the Lender in respect of the Replacement Sites if (x) the Borrowers shall have delivered Rating Agency Confirmation to the Lender or (y) the Substituted Sites were not part of the Collateral on April 18, 2013.
(F) The Borrowers shall deliver or cause to be delivered to the Lender resolutions, if any are required, authorizing the Substitution and any actions taken in connection with such Substitution.
(G) The Lender shall have received such opinions as may be reasonably requested with respect to the Loan Documents delivered with respect to the Replacement Sites, the Borrowers’ qualificationqualifications, and authorization substantially in the form delivered at the Original Closing, together with an update of the insolvency opinion delivered at the Original Closing indicating that the Substitution does not affect the opinions set forth therein, and an opinion of counsel stating that the Substitution does not constitute a “significant modification” of the Loan or “deemed exchange” of the Notes under Section 1001 of the IRC.
(H) The Borrowers shall have paid or reimbursed the Lender for all third party out‑of‑pocket out-of-pocket costs and expenses incurred by the Lender (including, without limitation, reasonable attorneys fees and disbursements) in connection with the Substitution and the Borrowers shall have paid all Rating Agency fees, 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.
(I) The Lender shall have received a new or refreshed ASTM compliant Phase I environmental report prepared by a consultant reasonably acceptable to the Lender on the Replacement Site, together with a Phase II environment assessment report (if any database search Phase I environmental report reveals any condition that in the Lender’s reasonable judgment warrants such a report) which concludes that any such Replacement Site does not contain any Hazardous Materials (except for cleaning and other products used in connection with the routine maintenance or repair of the subject property) and is not in material violation of any Environmental Laws.
(J) The Lender shall have received a physical conditions report with respect to the Replacement Sites from a nationally recognized structural consultant approved by the ‑106‑ Lender in a form recognized and approved by the Lender prior to such release and Substitution stating that the Replacement Sites and their use comply in all material respects with applicable legal requirements of the Governmental Authorities customarily provided in such reports and that the Replacement Sites are in good condition and repair and free of damage or waste[Intentionally Omitted].
(K) The Rating Agencies shall have received prior notice of the Substitution from the Borrowers and the Lender shall have received from the Borrowers either (x) Rating Agency Confirmation with respect to the Substitution or (y) evidence in form and substance satisfactory to the Lender that each of the following is or will be true after giving effect to the Substitution:
If (1) the aggregate Allocated Loan Amounts Amount of all Substituted Sites and Substituted Other Pledged Sites during any calendar year do not exceed exceeds five percent (5%) of the monthly average of the Principal Amount of the Loan for such calendar year (with any excess limit permitted to be carried over into subsequent years, subject to an aggregate limit of 2510% of the monthly average of the principal amount of the Loan for the previous five seven (57) year period);
, provided that, if the date of determination is less than seven years from the Closing Date, such calculation shall be based on the monthly average of the principal amount of the Loan for the period from the Closing Date to the previous calendar month), (2) following such substitution, (w) the percentage of the Operating Revenues from the Replacement remaining Sites represented by (A) telephony tenants and non-telephony is 85% or greater, (B) investment grade tenants is 80% or greater, (x) the dollar amount of Operating Revenues attributable to the investment grade tenants (taken togetherin the aggregate) isand telephony tenants (in the aggregate) will not, (x) if in each case, be less than the Substitution is occurring prior to the Second Amendment Effective Datedollar amount for such tenants than as of December 31, 90% or greater or2006, (y) if at least 80% of the Substitution Allocated Loan Amount of all the Sites is occurring on or after attributable to a combination of Owned Land Sites and Ground Lease Sites where the Second Amendment Effective Dateground lessor (and AT&T with respect to the AT&T Sites) has agreed to provide the leasehold mortgagee with notice of the occurrence of a default under the Ground Lease and an opportunity to cure the applicable Borrower’s default, and (z) Mortgaged Sites will represent not materially less than (and in any event less than 9590% of) such percentage immediately prior to of the Substitution;
Allocated Loan Amount for all of the Sites, (3) if any of the Replacement Substitute Sites will be subject to a Ground Lease, all such Ground Leases will have, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, Lease with a remaining term (including all available extensions) of not less than the average remaining term (including of all available extensions) of the Ground Leases on all other Sites subject to Ground Leases prior to the Substitution (in both casesLeases, excluding any Ground Leases of an original term of ninety (90) years or greater in duration) or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, a remaining term (including all available extensions) that is not shorter than one year shorter than the average remaining term (calculated on a net cash flow weighted average basis and including all available extensions) of the Ground Leases on all Sites subject to Ground Leases prior to the Substitution (in both cases, excluding any Ground Leases of an original term of ninety (90) years or greater in duration) from the date of the Substitution;
(4) the weighted average remaining term of the Leases (by revenue) with respect to the Replacement Sites is, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, not equal to or longer than the weighted average remaining term of the Leases (by revenue) with respect to all Sites prior to the Substitution orother Sites, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, not shorter than one year shorter than the weighted average remaining term of the Leases (by revenue) with respect to all Sites prior to the Substitution;
(5) the Maintenance Capital Expenditures for the Replacement Sites (taken together and averaged on a per site basis) are not materially greater than the Maintenance ‑107‑ Capital Expenditures for the Substituted Sites (taken together and averaged on a per site basis);
Sites, (6) after giving effect to the Substitution, the Debt Service Coverage Ratio will be, (x) if of the Substitution Loan is occurring prior to the Second Amendment Effective Date, not at least equal to or greater than the Debt Service Coverage Ratio of the Loan as of the date immediately preceding the Substitution or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, at least within 0.2x of, the Debt Service Coverage Ratio as of the date immediately preceding the Substitution; and
(7) the aggregate value of the Replacement Sites, as established by the Borrowers to the reasonable satisfaction of the Lender, is shall not be at least equal to the aggregate value of the Substituted Sites as of the date immediately preceding the Substitution (such valuation to be performed in a manner consistent with industry standards for the valuation of tower Sites), the Borrowers shall have delivered Rating Agency Confirmation.
(L) On or prior to the date of Substitution, the Borrowers shall deliver to the Lender an Officer’s Certificate dated as of the date of Substitution certifying that the requirements set forth in this Section 11.5 have been satisfied and remaking the representations and warranties set forth in Sections 4.5 through 4.8, and Section 4.25(A) (if a Substituted Site is a Ground Lease Site) and Section 4.26 (if a Substituted Site is an Easement Site) with respect to the Substituted Site as of that date.
(M) If such Substitution is occurring prior to the Third Amendment Effective Date, immediately following such Substitution, the Substituted Sites will be owned by a Person other than the Borrowers or any of their Affiliates (unless such Substitution is effectuated to cure a Default, in which event the Substituted Sites may be owned by an Affiliate of the Borrowers)[Intentionally Omitted].
(N) If during a Special Servicing Period, the Servicer consents to such SubstitutionSubstitution (unless such release or disposition would cure the Special Servicing Period).
(O) Upon the satisfaction of the foregoing conditions precedent, as reasonably determined by the Lender, (i) the Lender will release its lien from the Substituted Sites, (ii) the Replacement Sites shall be deemed to be “Mortgaged Sites” hereunder, (iii) all references herein to the Deeds of Trust shall include the applicable security instrument encumbering the Replacement Sites, and (iv) the applicable Allocated Loan Amount with respect to the Substituted Sites shall be deemed to be the Allocated Loan Amount with respect to the Replacement Sites for all purposes hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (American Tower Corp /Ma/)
Substitution of a Mortgaged Site. (A) Subject to the terms and conditions set forth in this Section 11.5, the Borrowers shall have the right to obtain a release of the lien of the applicable Deed of Trust (and the related Loan Documents) encumbering one or more Mortgaged Sites and dispose of such Mortgaged Sites (for purposes of this section only, hereinafter referred to as, the “Substituted Sites”) by (i) substituting therefor one or more properties of like kind and or better quality (which shall include, among other things, the geographic diversity of the Substituted Sites and markets and submarkets with, among other similarities, similar demographics, populations, absorption trends, accessibility and visibility, taken as a whole) or (ii), ) with respect to any of the Ground Lease Sites, subjecting the applicable Borrower’s interest in such Ground Lease Site to the lien of a security instrument in favor of the Lender as security for the Loan (individually, a “Replacement Site” and, collectively, the “Replacement Sites”). In addition, any such substitution (each, a “Substitution”) shall be subject, in each case, to the satisfaction of the following conditions precedent:
(A) No Amortization Period The Release or Event of Default Substitution Conditions shall have occurred and be continuing, been satisfied (unless the release Substitution is in connection with the cure of a breach of a representation, warranty, covenant or other default hereunder with respect to the Substituted Site will cure or if the Substituted Site is subject to a Title Defect Cash Flow Event, for which the Release or Substitution Conditions need not be satisfied; provided, however, that in such Event case on or prior to the date of DefaultSubstitution, the Borrowers shall deliver an Officer’s Certificate to Lender dated as of the date of such Substitution certifying that the requirements set forth in this Section 11.5 have been satisfied).
(B) The Borrowers shall have given the Lender at least forty five (45) days prior written notice of its election to seek a Substitution.
(C) The Lender shall have received a copy of the instrument conveying to the applicable Borrower the transferred interests and, if such instrument creates a leasehold interest or an easement interest in favor respect of the Borrowers, such instrument shall be reasonably satisfactory to the Lender and, if the Substitution is occurring prior to the First Amendment Effective Date, shall contain such Lender protections as are contained in similar instruments accepted by the Lender at the Original Closing, and be accompanied by an estoppel or similar instrument reasonably satisfactory to the LenderReplacement Site.
(D) The Borrowers shall have executed, acknowledged and delivered to the Lender (i) a mortgage, a deed of trust, or a deed to secure debt, as applicable, with respect to the Replacement Sites, so as to effectively create upon recording and filing valid and enforceable liens upon the Replacement Sites, of first priority, in favor of the Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances, (ii) an environmental indemnity with respect to the Replacement Sites, (iii) written confirmation from SBA Holdings, the Parent Guarantor and each Additional Guarantor regarding such Substitution, (iv) modifications to the Loan Documents as the Lender deems desirable necessary to properly reflect the Substitution, and (v) such other documents and agreements as reasonably requested to evidence the Substitution. The security instrument and environmental indemnity shall be in the same form ‑105‑ and substance as the counterparts of such documents executed and delivered with respect to the Substituted Sites, subject to modifications reflecting the Replacement Sites as the property that is the subject of such documents and such modifications reflecting the laws of the State in which the Replacement Sites are located.
(E) The Lender shall have received (i) a title insurance policy (or a marked, signed and predated commitment to issue such title insurance policy) reasonably satisfactory to the Lender insuring the lien of the security instrument encumbering the Replacement Sites, issued by the Title Company and dated as of the date of the Substitution, (ii) reasonably requested endorsements to the title policies delivered to the Lender in connection with the Deeds of Trust to reflect the Substitution and (iii) copies of paid receipts showing that all premiums in respect of such endorsements and title insurance policies have been paid; provided, however, that, if the Substitution is occurring on or after the Second Amendment Effective Date, no title insurance policy or endorsements to title policies shall be required to be delivered to the Lender in respect of the Replacement Sites if (x) the Borrowers shall have delivered Rating Agency Confirmation to the Lender or (y) the Substituted Sites were not part of the Collateral on April 18, 2013.
(F) The Borrowers shall deliver or cause to be delivered to the Lender resolutions, if any are required, authorizing the Substitution and any actions taken in connection with such Substitution.
(G) The Lender shall have received such opinions as may be reasonably requested with respect to the Loan Documents delivered with respect to the Replacement Sites, the Borrowers’ qualification, and authorization substantially in the form delivered at the Original Closing, together with an update of the insolvency opinion delivered at the Original Closing indicating that the Substitution does not affect the opinions set forth therein, and an opinion of counsel stating that the Substitution does not constitute a “significant modification” of the Loan or “deemed exchange” of the Notes under Section 1001 of the IRC.
(H) The Borrowers shall have paid or reimbursed the Lender for all third party out‑of‑pocket costs and expenses incurred by the Lender (including, without limitation, reasonable attorneys fees and disbursements) in connection with the Substitution and the Borrowers shall have paid all Rating Agency fees, 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.
(I) The Lender shall have received a new or refreshed ASTM compliant Phase I environmental report prepared by a consultant reasonably acceptable to the Lender on the Replacement Site, together with a Phase II environment assessment report (if any database search Phase I environmental report reveals any condition that in the Lender’s reasonable judgment warrants such a report) which concludes that any such Replacement Site does not contain any Hazardous Materials (except for cleaning and other products used in connection with the routine maintenance or repair of the subject property) and is not in material violation of any Environmental Laws.
(J) The Lender shall have received a physical conditions report with respect to the Replacement Sites from a nationally recognized structural consultant approved by the ‑106‑ Lender in a form recognized and approved by the Lender prior to such release and Substitution stating that the Replacement Sites and their use comply in all material respects with applicable legal requirements of the Governmental Authorities customarily provided in such reports and that the Replacement Sites are in good condition and repair and free of damage or waste.
(K) The Rating Agencies shall have received prior notice of the Substitution from the Borrowers and the Lender shall have received from the Borrowers either (x) Rating Agency Confirmation with respect to the Substitution or (y) evidence in form and substance satisfactory to the Lender that each of the following is or will be true after giving effect to the Substitution:
(1) the aggregate Allocated Loan Amounts of all Substituted Sites and Substituted Other Pledged Sites during any calendar year do not exceed five percent (5%) of the monthly average of the Principal Amount of the Loan for such calendar year (with any excess limit permitted to be carried over into subsequent years, subject to an aggregate limit of 25% of the monthly average of the principal amount of the Loan for the previous five (5) year period);
(2) the percentage of Operating Revenues from the Replacement Sites represented by telephony tenants and non-telephony investment grade tenants (taken together) is, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, 90% or greater or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, not materially less than (and in any event less than 95% of) such percentage immediately prior to the Substitution;
(3) if any of the Replacement Sites will be subject to a Ground Lease, all such Ground Leases will have, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, a remaining term (including all available extensions) of not less than the average remaining term (including all available extensions) of the Ground Leases on all Sites subject to Ground Leases prior to the Substitution (in both cases, excluding any Ground Leases of an original term of ninety (90) years or greater in duration) or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, a remaining term (including all available extensions) that is not shorter than one year shorter than the average remaining term (calculated on a net cash flow weighted average basis and including all available extensions) of the Ground Leases on all Sites subject to Ground Leases prior to the Substitution (in both cases, excluding any Ground Leases of an original term of ninety (90) years or greater in duration) from the date of the Substitution;
(4) the weighted average remaining term of the Leases (by revenue) with respect to the Replacement Sites is, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, equal to or longer than the weighted average remaining term of the Leases (by revenue) with respect to all Sites prior to the Substitution or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, not shorter than one year shorter than the weighted average remaining term of the Leases (by revenue) with respect to all Sites prior to the Substitution;
(5) the Maintenance Capital Expenditures for the Replacement Sites (taken together and averaged on a per site basis) are not materially greater than the Maintenance ‑107‑ Capital Expenditures for the Substituted Sites (taken together and averaged on a per site basis);
(6) after giving effect to the Substitution, the Debt Service Coverage Ratio will be, (x) if the Substitution is occurring prior to the Second Amendment Effective Date, equal to or greater than the Debt Service Coverage Ratio as of the date immediately preceding the Substitution or, (y) if the Substitution is occurring on or after the Second Amendment Effective Date, at least within 0.2x of, the Debt Service Coverage Ratio as of the date immediately preceding the Substitution; and
(7) the aggregate value of the Replacement Sites, as established by the Borrowers to the reasonable satisfaction of the Lender, is at least equal to the aggregate value of the Substituted Sites as of the date immediately preceding the Substitution (such valuation to be performed in a manner consistent with industry standards for the valuation of tower Sites).
(L) On or prior to the date of Substitution, the Borrowers shall deliver to the Lender an Officer’s Certificate dated as of the date of Substitution certifying that the requirements set forth in this Section 11.5 have been satisfied and remaking the representations and warranties set forth in Sections 4.5 through 4.8, Section 4.25(A) (if a Substituted Site is a Ground Lease Site) and Section 4.26 (if a Substituted Site is an Easement Site) with respect to the Substituted Site as of that date.
(M) If such Substitution is occurring prior to the Third Amendment Effective Date, immediately following such Substitution, the Substituted Sites will be owned by a Person other than the Borrowers or any of their Affiliates (unless such Substitution is effectuated to cure a Default, in which event the Substituted Sites may be owned by an Affiliate of the Borrowers).
(N) If during a Special Servicing Period, the Servicer consents to such Substitution.
(O) Upon the satisfaction of the foregoing conditions precedent, as reasonably determined by the Lender, (i) the Lender will release its lien from the Substituted Sites, (ii) the Replacement Sites shall be deemed to be “Mortgaged Sites” hereunder, (iii) all references herein to the Deeds of Trust shall include the applicable security instrument encumbering the Replacement Sites, and (iv) the applicable Allocated Loan Amount with respect to the Substituted Sites shall be deemed to be the Allocated Loan Amount with respect to the Replacement Sites for all purposes hereunder.the
Appears in 1 contract
Samples: Loan and Security Agreement (American Tower Corp /Ma/)
