Substitution of Properties. Borrower may cause Mortgage Borrower and Maryland Owner to obtain the release of one or more Individual Properties from the Lien of the Mortgage thereon and the release of Mortgage Borrower's and/or Maryland Owner's obligations under the Mortgage Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such Individual Property, a "Substituted Property"), by substituting therefor one or more properties (such properties, individually and collectively as the context requires, "Substitute Property"), upon the satisfaction of each of the following conditions: (a) After giving effect to the proposed substitution, no Event of Default shall be continuing; (b) Lender shall have received at least thirty (30) days' prior notice requesting the substitution and identifying the Substitute Property and the Substituted Property; (c) All conditions to the substitution set forth in Section 2.5 of the Mortgage Loan Agreement and each Senior Mezzanine Loan Agreement shall have been satisfied and Lender shall have received evidence that all such conditions shall have been satisfied; provided that such evidence shall in all cases consist of the identical evidence or documentation provided to Mortgage Lender and each Senior Mezzanine Lender in satisfaction of such conditions; (d) Lender shall have received an Officer's Certificate stating that (i) no Event of Default shall have occurred and be continuing, (ii) each of the representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects with respect to the Substitute Property Borrower and the Substitute Property as of the applicable Substitution Effective Date (on a pro forma basis giving effect to the proposed substitution) and (iii) that all of the conditions of this Section 2.5 shall have been satisfied or waived; (e) Lender shall have received such certified organizational documents, good standing certificates, qualifications to do business, resolutions and consents for the Substitute Property Borrower and the Substitute Property Operator in connection with the substitution as are requested by Mortgage Lender pursuant to Section 2.5(o) of the Mortgage Loan Agreement; (f) Lender shall have received such lien, credit, bankruptcy, litigation and judgment searches with respect to the Substitute Property, the Substitute Property Borrower, the Substitute Property Operator, any former owner and/or operator of the Substitute Property and any direct or indirect owner thereof as are provided to Mortgage Lender pursuant to Section 2.5(w) of the Mortgage Loan Agreement; (g) Lender shall have received a mezzanine loan or similar endorsement (to the extent available, and if not available, a form of "comfort letter" in substantially the form delivered at closing, if available) to each owner's Title Insurance Policy insuring such Substitute Property as of the Substitution Effective Date. Lender also shall have received copies of paid receipts or a closing statement showing that all premiums in respect of such endorsements and Title Insurance Policies have been paid or will be paid at closing of the purchase of the Substitute Property; (h) Lender shall have received from Borrower a copy of each document, agreement, financial statement, amendment, instrument, report, appraisal, opinion, survey, study or other communication delivered by Mortgage Borrower to Mortgage Lender in connection with such Substitution pursuant to Section 2.5 of the Mortgage Loan Agreement; (i) Intentionally omitted; (j) Lender shall have received the following opinions of Borrower's counsel: (i) copies of First Mezzanine Borrower's counsel's opinion as to the perfection and enforceability of the pledge of the ownership interests in the Substitute Property Borrower, (ii) copies of an opinion or opinions of counsel admitted in New York and Delaware opining as to such matters with respect to the Substitute Property Borrower and the documents and instruments delivered with respect to the substitution and with such qualifications and assumptions as the opinions with respect to the Property delivered at the closing of the Mortgage Loan, which opinions and the counsel issuing the same would be acceptable to a prudent lender originating commercial mortgage loans for securitization similar to the Mortgage Loan, (iii) copies of so-called "Special Delaware" opinions with respect to the Substitute Property Borrower and the Substitute Property Operator issued by counsel admitted to practice in Delaware and with such qualifications and assumptions as the "Special Delaware" opinions with respect to Mortgage Borrower, Maryland Owner and Operator delivered at the closing of the Mortgage Loan, which opinions and counsel issuing the same shall otherwise be acceptable to the Rating Agencies, (iv) copies of an opinion of counsel with respect to such health care regulatory matters as are required by the Rating Agencies with respect to the Mortgage Loan, (v) copies of an opinion of counsel which would be acceptable to a prudent lender originating commercial mortgage loans for securitizations similar to the Mortgage Loan, and if after a Securitization of the Mortgage Loan, acceptable to the Rating Agencies, opining that subjecting the Substitute Property to the Lien of the related Substitute Property Lien Documents and the execution and delivery of the related Loan Documents does not and will not affect or impair the ability of Mortgage Lender to enforce its remedies under all of the Mortgage Loan Documents or to realize the benefits of the cross-collateralization provided for thereunder, (vi) if required by the Rating Agencies under the Mortgage Loan, an Additional True-Lease Opinion of counsel acceptable to the Rating Agencies under the Mortgage Loan, (vii) copies of an opinion of counsel acceptable to the Rating Agencies under the Mortgage Loan that the substitution does not constitute a "significant modification" of the Mortgage Loan under Section 1001 of the Code or otherwise cause a tax to be imposed on a "prohibited transaction" by any REMIC Trust and (viii) an update of the Insolvency Opinion indicating that the substitution does not affect the opinions set forth therein (it being agreed that any opinions contemplated by this paragraph which cover the same matters as opinions delivered on the Closing Date shall be of similar form and substance as those delivered on the Closing Date); (k) Lender shall have received with respect to the Substitute Property Borrower and the Substitute Property, as applicable, (i) annual operating statements for the three (3) years immediately prior to the Substitution Effective Date, (ii) financial statements for the most current completed Fiscal Year in accordance with the requirements of Section 5.1.11 hereof, (iii) a current operating statement and (iv) an Officer's Certificate certifying that each of the foregoing presents fairly the financial condition and the results of operations of the Substitute Property Borrower and the Substitute Property and that there has been no material adverse change in the financial condition of the Substitute Property; (l) Following the substitution of a Substituted Property in exchange for a Substitute Property in accordance with this Section 2.5, Lender shall adjust (if applicable) the amounts thereafter required to be deposited by Borrower into the Reserve Funds to reflect amounts required solely for the remaining Individual Properties and the Substitute Property after giving effect to such substitution, unless such deposits have been made by Mortgage Borrower and Maryland Owner or any Senior Mezzanine Borrower pursuant to the Mortgage Loan Documents or the applicable Senior Mezzanine Loan Documents, in which case the making of such deposits shall be waived hereunder; (m) Borrower shall have caused to be paid or reimbursed Lender for all costs and expenses incurred by Lender (including, without limitation, reasonable attorneys fees and disbursements) in connection with the release and substitution and Borrower shall have caused to be 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 caused to be paid all costs and expenses and fees of the Rating Agencies incurred by Mortgage Borrower and Maryland Owner in connection with the substitution; and (n) such substitution shall not result in any breach of or noncompliance with any applicable REIT Representations and Covenants. Upon satisfaction or waiver of the foregoing conditions precedent, the Allocated Loan Amount of the Substitute Property shall be equal to the Allocated Loan Amount of the Substituted Property (and, if there is more than one Substitute Property, the Allocated Loan Amount of the Substituted Property shall be allocable to each such Substitute Property on a pro rata basis according to the Appraised Value thereof) (such date, the "Substitution Effective Date").
Appears in 1 contract
Samples: Loan Agreement (Hcp, Inc.)
Substitution of Properties. Borrower may cause Mortgage Borrower 56 39. The Individual Trustee.................................... 59 SCHEDULE A Land Parcel SCHEDULE B Basic Rent SCHEDULE C Termination Values SCHEDULE D Environmental Matters SCHEDULE E Purchase Prices SCHEDULE F Maximum Lessor and Maryland Owner Lessee Risk Amounts SCHEDULE G Permitted Encumbrances SCHEDULE H Form of Supplement to obtain the release Lease SCHEDULE I Form of one or more Individual Properties Certificate As to Insurance SCHEDULE J Allocable Percentages SCHEDULE K Form of Lessee Estoppel Certificate THIS AMENDED AND RESTATED LEASE AGREEMENT, dated as of October 14, 1998 as amended and supplemented from the Lien time to time (this Lease), by and between FIRST ----- SECURITY BANK, N.A., a national banking association, and Xxx X. Xxxxx, not individually but solely in their capacities as owner trustee under that certain Amended and Restated Trust Agreement dated as of the Mortgage thereon date hereof, the trust thereunder being referred to as the COB Real Estate Trust 1995-1, as lessor (together with their respective successors and assigns, collectively, Lessor), ------ having an office at 00 Xxxxx Xxxx Xxxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, and CAPITAL ONE REALTY, INC., a Delaware corporation, as lessee (together with their respective successors and permitted assigns, Lessee), having an address at ------ 0000 Xxxxxxxx Xxxx Xxxxx, Xxxxx 0000, Xxxxx Xxxxxx, XX 00000. Lessor and Lessee, as assignee of Guarantor's interest thereunder, have entered into a Lease Agreement dated as of January 5, 1996, as amended and supplemented (the release of Mortgage Borrower's and/or Maryland Owner's obligations under the Mortgage Loan Documents Original Lease) with respect to such Individual Property those certain parcels of land -------------- described in Schedule A annexed hereto (other than those expressly stated to survive) (each such Individual Propertyindividually, a "Substituted Property"Land Parcel and collectively, the Land Parcels). Lessor and Lessee each desire to amend, by substituting therefor ------------ restate and supercede the Original Lease in order to modify the terms and conditions thereof. Lessor and Lessee hereby agree, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, one or more properties (such properties, individually and collectively as the context requires, "Substitute Property"), upon the satisfaction of each of the following conditions:
(a) After giving effect to the proposed substitution, no Event of Default shall be continuing;
(b) Lender shall have received at least thirty (30) days' prior notice requesting the substitution and identifying the Substitute Property and the Substituted Property;
(c) All conditions to the substitution set forth in Section 2.5 of the Mortgage Loan Agreement and each Senior Mezzanine Loan Agreement shall have been satisfied and Lender shall have received evidence that all such conditions shall have been satisfied; provided that such evidence shall in all cases consist of the identical evidence or documentation provided to Mortgage Lender and each Senior Mezzanine Lender in satisfaction of such conditions;
(d) Lender shall have received an Officer's Certificate stating that (i) no Event of Default shall have occurred and be continuing, (ii) each of the representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects with respect to the Substitute Property Borrower and the Substitute Property as of the applicable Substitution Effective Date (on a pro forma basis giving effect to the proposed substitution) and (iii) that all of the conditions of this Section 2.5 shall have been satisfied or waived;
(e) Lender shall have received such certified organizational documents, good standing certificates, qualifications to do business, resolutions and consents for the Substitute Property Borrower and the Substitute Property Operator in connection with the substitution as are requested by Mortgage Lender pursuant to Section 2.5(o) of the Mortgage Loan Agreement;
(f) Lender shall have received such lien, credit, bankruptcy, litigation and judgment searches with respect to the Substitute Property, the Substitute Property Borrower, the Substitute Property Operator, any former owner and/or operator of the Substitute Property and any direct or indirect owner thereof as are provided to Mortgage Lender pursuant to Section 2.5(w) of the Mortgage Loan Agreement;
(g) Lender shall have received a mezzanine loan or similar endorsement (to the extent available, and if not available, a form of "comfort letter" in substantially the form delivered at closing, if available) to each owner's Title Insurance Policy insuring such Substitute Property as of the Substitution Effective Date. Lender also shall have received copies of paid receipts or a closing statement showing that all premiums in respect of such endorsements and Title Insurance Policies have been paid or will be paid at closing of the purchase of the Substitute Property;
(h) Lender shall have received from Borrower a copy of each document, agreement, financial statement, amendment, instrument, report, appraisal, opinion, survey, study or other communication delivered by Mortgage Borrower to Mortgage Lender in connection with such Substitution pursuant to Section 2.5 of the Mortgage Loan Agreement;
(i) Intentionally omitted;
(j) Lender shall have received the following opinions of Borrower's counsel: (i) copies of First Mezzanine Borrower's counsel's opinion as to the perfection and enforceability of the pledge of the ownership interests in the Substitute Property Borrower, (ii) copies of an opinion or opinions of counsel admitted in New York and Delaware opining as to such matters with respect to the Substitute Property Borrower and the documents and instruments delivered with respect to the substitution and with such qualifications and assumptions as the opinions with respect to the Property delivered at the closing of the Mortgage Loan, which opinions and the counsel issuing the same would be acceptable to a prudent lender originating commercial mortgage loans for securitization similar to the Mortgage Loan, (iii) copies of so-called "Special Delaware" opinions with respect to the Substitute Property Borrower and the Substitute Property Operator issued by counsel admitted to practice in Delaware and with such qualifications and assumptions as the "Special Delaware" opinions with respect to Mortgage Borrower, Maryland Owner and Operator delivered at the closing of the Mortgage Loan, which opinions and counsel issuing the same shall otherwise be acceptable to the Rating Agencies, (iv) copies of an opinion of counsel with respect to such health care regulatory matters as are required by the Rating Agencies with respect to the Mortgage Loan, (v) copies of an opinion of counsel which would be acceptable to a prudent lender originating commercial mortgage loans for securitizations similar to the Mortgage Loan, and if after a Securitization of the Mortgage Loan, acceptable to the Rating Agencies, opining that subjecting the Substitute Property to the Lien of the related Substitute Property Lien Documents and the execution and delivery of the related Loan Documents does not and will not affect or impair the ability of Mortgage Lender to enforce its remedies under all of the Mortgage Loan Documents or to realize the benefits of the cross-collateralization provided for thereunder, (vi) if required by the Rating Agencies under the Mortgage Loan, an Additional True-Lease Opinion of counsel acceptable to the Rating Agencies under the Mortgage Loan, (vii) copies of an opinion of counsel acceptable to the Rating Agencies under the Mortgage Loan that the substitution does not constitute a "significant modification" of the Mortgage Loan under Section 1001 of the Code or otherwise cause a tax to be imposed on a "prohibited transaction" by any REMIC Trust and (viii) an update of the Insolvency Opinion indicating that the substitution does not affect the opinions set forth therein (it being agreed that any opinions contemplated by this paragraph which cover the same matters as opinions delivered on the Closing Date shall be of similar form and substance as those delivered on the Closing Date);
(k) Lender shall have received with respect to the Substitute Property Borrower and the Substitute Propertyother, as applicable, follows (i) annual operating statements for the three (3) years immediately prior to the Substitution Effective Date, (ii) financial statements for the most current completed Fiscal Year capitalized terms not otherwise defined are defined in accordance with the requirements of Section 5.1.11 hereof, (iii) a current operating statement and (iv) an Officer's Certificate certifying that each of the foregoing presents fairly the financial condition and the results of operations of the Substitute Property Borrower and the Substitute Property and that there has been no material adverse change in the financial condition of the Substitute Property;
(l) Following the substitution of a Substituted Property in exchange for a Substitute Property in accordance with this Section 2.5, Lender shall adjust (if applicable) the amounts thereafter required to be deposited by Borrower into the Reserve Funds to reflect amounts required solely for the remaining Individual Properties and the Substitute Property after giving effect to such substitution, unless such deposits have been made by Mortgage Borrower and Maryland Owner or any Senior Mezzanine Borrower pursuant to the Mortgage Loan Documents or the applicable Senior Mezzanine Loan Documents, in which case the making of such deposits shall be waived hereunder;
(m) Borrower shall have caused to be paid or reimbursed Lender for all costs and expenses incurred by Lender (including, without limitation, reasonable attorneys fees and disbursements) in connection with the release and substitution and Borrower shall have caused to be 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 caused to be paid all costs and expenses and fees of the Rating Agencies incurred by Mortgage Borrower and Maryland Owner in connection with the substitution; and
(n) such substitution shall not result in any breach of or noncompliance with any applicable REIT Representations and Covenants. Upon satisfaction or waiver of the foregoing conditions precedent, the Allocated Loan Amount of the Substitute Property shall be equal to the Allocated Loan Amount of the Substituted Property (and, if there is more than one Substitute Property, the Allocated Loan Amount of the Substituted Property shall be allocable to each such Substitute Property on a pro rata basis according to the Appraised Value thereof) (such date, the "Substitution Effective Date").Appendix I hereto):
Appears in 1 contract
Substitution of Properties. Subject to the terms of this Section 2.9, Borrower may cause Mortgage Borrower and Maryland Owner to obtain the obtain, from time to time, a release of one or more Individual Properties from the Lien of the Mortgage thereon and the release of Mortgage Borrower's and/or Maryland Owner's obligations under the Mortgage Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such Individual Propertyeach, a "Substituted “Release Property"), ”) by substituting therefor one or more luxury residential apartment building properties of like kind and quality located in the United States of America acquired by Mortgage Borrower or an Affiliate of Mortgage Borrower (provided, however, that if the Substitute Property shall be owned by an Affiliate of Mortgage Borrower, such propertiesAffiliate (i) shall be wholly owned, individually directly or indirectly, by a Mezzanine B Borrower Entity, (ii) shall assume all the obligations of Mortgage Borrower under the Mortgage Loan Agreement, the Mortgage Note and collectively the other Mortgage Loan Documents (subject, however, to the exculpatory provisions of Section 9.4 hereof) and (iii) shall become a party to the Mortgage Note and the other Mortgage Loan Documents and shall be bound by the terms and provisions thereof as if it had executed the context requiresMortgage Note and the other Mortgage Loan Documents and shall have the rights and obligations of Mortgage Borrower thereunder) (individually, "a “Substitute Property"” and collectively, the “Substitute Properties”), upon the satisfaction of each of provided that the following conditionsconditions precedent are satisfied or, in Lender’s sole discretion, waived:
(a) After giving effect to the proposed substitution, no Event of Default shall be continuing;
(b) Lender shall have received at least thirty (30) days' ’ prior written notice requesting the substitution and identifying the Substitute Property and the Substituted Release Property;.
(ci) All conditions to the release of such Individual Property and substitution set forth of such Substitute Property shall have been satisfied in Section 2.5 accordance with the terms of the Mortgage Loan Agreement Documents (as independently determined by Lender in its reasonable discretion) and each Senior Mezzanine Loan Agreement (ii) all conditions to the release of such Individual Property and substitution of such Substitute Property shall have been satisfied in accordance with the terms of Section 2.9 of the Mezzanine B Loan Agreement with respect to such release and substitution.
(c) If the Mortgage Borrower Entity that owns the Release Property will continue to own an Individual Property subject to the Lien of a Security Instrument, Lender shall have received evidence that (i) a copy of a deed conveying all such conditions shall have been satisfied; provided that such evidence shall in all cases consist of the identical evidence or documentation provided to Mortgage Lender and each Senior Mezzanine Lender in satisfaction of such conditions;Mortgage Borrower Entity’s right, title and interest in and to the Release Property to a Person other than Mortgage Borrower or Mortgage Principal and (ii) a letter from Mortgage Borrower countersigned by 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 Release Property is located.
(d) Lender shall have received an Officer's Certificate stating that (i) no Event a current Appraisal of Default shall have occurred and be continuing, (ii) each of the representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects with respect to the Substitute Property Borrower prepared not earlier than one (1) year prior to the release and substitution showing an appraised value for the Substitute Property equal to or greater than the appraised value of the Release Property as of the applicable Substitution Effective Date (on a pro forma basis giving effect to the proposed substitution) and (iii) that all of the conditions of this Section 2.5 shall have been satisfied or waived;
(e) Lender shall have received such certified organizational documents, good standing certificates, qualifications to do business, resolutions and consents for the Substitute Property Borrower and the Substitute Property Operator in connection with the substitution as are requested by Mortgage Lender pursuant to Section 2.5(o) of the Mortgage Loan Agreement;
(f) Lender shall have received such lien, credit, bankruptcy, litigation and judgment searches with respect to the Substitute Property, the Substitute Property Borrower, the Substitute Property Operator, any former owner and/or operator of the Substitute Property and any direct or indirect owner thereof as are provided to Mortgage Lender pursuant to Section 2.5(w) of the Mortgage Loan Agreement;
(g) Lender shall have received a mezzanine loan or similar endorsement (to the extent available, and if not available, a form of "comfort letter" in substantially the form delivered at closing, if available) to each owner's Title Insurance Policy insuring such Substitute Property as of the Substitution Effective Date. Lender also shall have received copies of paid receipts or a closing statement showing that all premiums in respect of such endorsements and Title Insurance Policies have been paid or will be paid at closing of the purchase of the Substitute Property;
(h) Lender shall have received from Borrower a copy of each document, agreement, financial statement, amendment, instrument, report, appraisal, opinion, survey, study or other communication delivered by Mortgage Borrower to Mortgage Lender in connection with such Substitution pursuant to Section 2.5 of the Mortgage Loan Agreement;
(i) Intentionally omitted;
(j) Lender shall have received the following opinions of Borrower's counsel: (i) copies of First Mezzanine Borrower's counsel's opinion as to the perfection and enforceability of the pledge of the ownership interests in the Substitute Property Borrower, (ii) copies of an opinion or opinions of counsel admitted in New York and Delaware opining as to such matters with respect to the Substitute Property Borrower and the documents and instruments delivered with respect to the substitution and with such qualifications and assumptions as the opinions with respect to the Property delivered at the closing of the Mortgage Loan, which opinions and the counsel issuing the same would be acceptable to a prudent lender originating commercial mortgage loans for securitization similar to the Mortgage Loan, (iii) copies of so-called "Special Delaware" opinions with respect to the Substitute Property Borrower and the Substitute Property Operator issued by counsel admitted to practice in Delaware and with such qualifications and assumptions as the "Special Delaware" opinions with respect to Mortgage Borrower, Maryland Owner and Operator delivered at the closing of the Mortgage Loan, which opinions and counsel issuing the same shall otherwise be acceptable to the Rating Agencies, (iv) copies of an opinion of counsel with respect to such health care regulatory matters as are required by the Rating Agencies with respect to the Mortgage Loan, (v) copies of an opinion of counsel which would be acceptable to a prudent lender originating commercial mortgage loans for securitizations similar to the Mortgage Loan, and if after a Securitization of the Mortgage Loan, acceptable to the Rating Agencies, opining that subjecting the Substitute Property to the Lien of the related Substitute Property Lien Documents and the execution and delivery of the related Loan Documents does not and will not affect or impair the ability of Mortgage Lender to enforce its remedies under all of the Mortgage Loan Documents or to realize the benefits of the cross-collateralization provided for thereunder, (vi) if required by the Rating Agencies under the Mortgage Loan, an Additional True-Lease Opinion of counsel acceptable to the Rating Agencies under the Mortgage Loan, (vii) copies of an opinion of counsel acceptable to the Rating Agencies under the Mortgage Loan that the substitution does not constitute a "significant modification" of the Mortgage Loan under Section 1001 of the Code or otherwise cause a tax to be imposed on a "prohibited transaction" by any REMIC Trust and (viii) an update of the Insolvency Opinion indicating that the substitution does not affect the opinions set forth therein (it being agreed that any opinions contemplated by this paragraph which cover the same matters as opinions delivered on the Closing Date shall be of similar form and substance as those delivered on the Closing Date);
(k) Lender shall have received with respect to the Substitute Property Borrower and the Substitute Property, as applicable, (i) annual operating statements for the three (3) years immediately prior to the Substitution Effective Date, (ii) financial statements for the most current completed Fiscal Year in accordance with the requirements of Section 5.1.11 hereof, (iii) a current operating statement and (iv) an Officer's Certificate certifying that each of the foregoing presents fairly the financial condition and the results of operations of the Substitute Property Borrower and the Substitute Property and that there has been no material adverse change in the financial condition of the Substitute Property;
(l) Following the substitution of a Substituted Property in exchange for a Substitute Property in accordance with this Section 2.5, Lender shall adjust (if applicable) the amounts thereafter required to be deposited by Borrower into the Reserve Funds to reflect amounts required solely for the remaining Individual Properties and the Substitute Property after giving effect to such substitution, unless such deposits have been made by Mortgage Borrower and Maryland Owner or any Senior Mezzanine Borrower pursuant to the Mortgage Loan Documents or the applicable Senior Mezzanine Loan Documents, in which case the making of such deposits shall be waived hereunder;
(m) Borrower shall have caused to be paid or reimbursed Lender for all costs and expenses incurred by Lender (including, without limitation, reasonable attorneys fees and disbursements) in connection with the release and substitution and Borrower shall have caused to be 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 caused to be paid all costs and expenses and fees of the Rating Agencies incurred by Mortgage Borrower and Maryland Owner in connection with the substitution; and
(n) such substitution shall not result in any breach of or noncompliance with any applicable REIT Representations and Covenants. Upon satisfaction or waiver of the foregoing conditions precedent, the Allocated Loan Amount of the Substitute Property shall be equal to the Allocated Loan Amount of the Substituted Property (and, if there is more than one Substitute Property, the Allocated Loan Amount of the Substituted Property shall be allocable to each such Substitute Property on a pro rata basis according to the Appraised Value thereof) (such date, the "Substitution Effective Date").
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Archstone Smith Operating Trust)
Substitution of Properties. Subject to the terms of this Section 2.9, Borrower may cause Mortgage Borrower and Maryland Owner to obtain the obtain, from time to time, a release of one or more Individual Properties from the Lien of the Mortgage thereon and the release of Mortgage Borrower's and/or Maryland Owner's obligations under the Mortgage Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such Individual Propertyeach, a "Substituted “Release Property"), ”) by substituting therefor one or more luxury residential apartment building properties of like kind and quality located in the United States of America acquired by Mortgage Borrower or an Affiliate of Mortgage Borrower (provided, however, that if the Substitute Property shall be owned by an Affiliate of Mortgage Borrower, such propertiesAffiliate (i) shall be wholly owned, individually directly or indirectly, by a Borrower Entity, (ii) shall assume all the obligations of Mortgage Borrower under the Mortgage Loan Agreement, the Mortgage Note and collectively the other Mortgage Loan Documents (subject, however, to the exculpatory provisions of Section 9.4 hereof) and (iii) shall become a party to the Mortgage Note and the other Mortgage Loan Documents and shall be bound by the terms and provisions thereof as if it had executed the context requiresMortgage Note and the other Mortgage Loan Documents and shall have the rights and obligations of Mortgage Borrower thereunder) (individually, "a “Substitute Property"” and collectively, the “Substitute Properties”), upon the satisfaction of each of provided that the following conditionsconditions precedent are satisfied or, in Lender’s sole discretion, waived:
(a) After giving effect to the proposed substitution, no Event of Default shall be continuing;
(b) Lender shall have received at least thirty (30) days' ’ prior written notice requesting the substitution and identifying the Substitute Property and the Substituted Release Property;.
(ci) All conditions to the release of such Individual Property and substitution set forth of such Substitute Property shall have been satisfied in Section 2.5 accordance with the terms of the Mortgage Loan Agreement Documents (as independently determined by Lender in its reasonable discretion) and each Senior Mezzanine Loan Agreement (ii) all conditions to the release of such Individual Property and substitution of such Substitute Property shall have been satisfied in accordance with the terms of Section 2.9 of the Mezzanine A Loan Agreement with respect to such release and substitution.
(c) If the Mortgage Borrower Entity that owns the Release Property will continue to own an Individual Property subject to the Lien of a Security Instrument, Lender shall have received evidence that (i) a copy of a deed conveying all such conditions shall have been satisfied; provided that such evidence shall in all cases consist of the identical evidence or documentation provided to Mortgage Lender and each Senior Mezzanine Lender in satisfaction of such conditions;Mortgage Borrower Entity’s right, title and interest in and to the Release Property to a Person other than Mortgage Borrower or Mortgage Principal and (ii) a letter from Mortgage Borrower countersigned by 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 Release Property is located.
(d) Lender shall have received an Officer's Certificate stating that (i) no Event a current Appraisal of Default shall have occurred and be continuing, (ii) each of the representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects with respect to the Substitute Property Borrower prepared not earlier than one (1) year prior to the release and substitution showing an appraised value for the Substitute Property equal to or greater than the appraised value of the Release Property as of the applicable Substitution Effective Date (on a pro forma basis giving effect to the proposed substitution) and (iii) that all of the conditions of this Section 2.5 shall have been satisfied or waived;
(e) Lender shall have received such certified organizational documents, good standing certificates, qualifications to do business, resolutions and consents for the Substitute Property Borrower and the Substitute Property Operator in connection with the substitution as are requested by Mortgage Lender pursuant to Section 2.5(o) of the Mortgage Loan Agreement;
(f) Lender shall have received such lien, credit, bankruptcy, litigation and judgment searches with respect to the Substitute Property, the Substitute Property Borrower, the Substitute Property Operator, any former owner and/or operator of the Substitute Property and any direct or indirect owner thereof as are provided to Mortgage Lender pursuant to Section 2.5(w) of the Mortgage Loan Agreement;
(g) Lender shall have received a mezzanine loan or similar endorsement (to the extent available, and if not available, a form of "comfort letter" in substantially the form delivered at closing, if available) to each owner's Title Insurance Policy insuring such Substitute Property as of the Substitution Effective Date. Lender also shall have received copies of paid receipts or a closing statement showing that all premiums in respect of such endorsements and Title Insurance Policies have been paid or will be paid at closing of the purchase of the Substitute Property;
(h) Lender shall have received from Borrower a copy of each document, agreement, financial statement, amendment, instrument, report, appraisal, opinion, survey, study or other communication delivered by Mortgage Borrower to Mortgage Lender in connection with such Substitution pursuant to Section 2.5 of the Mortgage Loan Agreement;
(i) Intentionally omitted;
(j) Lender shall have received the following opinions of Borrower's counsel: (i) copies of First Mezzanine Borrower's counsel's opinion as to the perfection and enforceability of the pledge of the ownership interests in the Substitute Property Borrower, (ii) copies of an opinion or opinions of counsel admitted in New York and Delaware opining as to such matters with respect to the Substitute Property Borrower and the documents and instruments delivered with respect to the substitution and with such qualifications and assumptions as the opinions with respect to the Property delivered at the closing of the Mortgage Loan, which opinions and the counsel issuing the same would be acceptable to a prudent lender originating commercial mortgage loans for securitization similar to the Mortgage Loan, (iii) copies of so-called "Special Delaware" opinions with respect to the Substitute Property Borrower and the Substitute Property Operator issued by counsel admitted to practice in Delaware and with such qualifications and assumptions as the "Special Delaware" opinions with respect to Mortgage Borrower, Maryland Owner and Operator delivered at the closing of the Mortgage Loan, which opinions and counsel issuing the same shall otherwise be acceptable to the Rating Agencies, (iv) copies of an opinion of counsel with respect to such health care regulatory matters as are required by the Rating Agencies with respect to the Mortgage Loan, (v) copies of an opinion of counsel which would be acceptable to a prudent lender originating commercial mortgage loans for securitizations similar to the Mortgage Loan, and if after a Securitization of the Mortgage Loan, acceptable to the Rating Agencies, opining that subjecting the Substitute Property to the Lien of the related Substitute Property Lien Documents and the execution and delivery of the related Loan Documents does not and will not affect or impair the ability of Mortgage Lender to enforce its remedies under all of the Mortgage Loan Documents or to realize the benefits of the cross-collateralization provided for thereunder, (vi) if required by the Rating Agencies under the Mortgage Loan, an Additional True-Lease Opinion of counsel acceptable to the Rating Agencies under the Mortgage Loan, (vii) copies of an opinion of counsel acceptable to the Rating Agencies under the Mortgage Loan that the substitution does not constitute a "significant modification" of the Mortgage Loan under Section 1001 of the Code or otherwise cause a tax to be imposed on a "prohibited transaction" by any REMIC Trust and (viii) an update of the Insolvency Opinion indicating that the substitution does not affect the opinions set forth therein (it being agreed that any opinions contemplated by this paragraph which cover the same matters as opinions delivered on the Closing Date shall be of similar form and substance as those delivered on the Closing Date);
(k) Lender shall have received with respect to the Substitute Property Borrower and the Substitute Property, as applicable, (i) annual operating statements for the three (3) years immediately prior to the Substitution Effective Date, (ii) financial statements for the most current completed Fiscal Year in accordance with the requirements of Section 5.1.11 hereof, (iii) a current operating statement and (iv) an Officer's Certificate certifying that each of the foregoing presents fairly the financial condition and the results of operations of the Substitute Property Borrower and the Substitute Property and that there has been no material adverse change in the financial condition of the Substitute Property;
(l) Following the substitution of a Substituted Property in exchange for a Substitute Property in accordance with this Section 2.5, Lender shall adjust (if applicable) the amounts thereafter required to be deposited by Borrower into the Reserve Funds to reflect amounts required solely for the remaining Individual Properties and the Substitute Property after giving effect to such substitution, unless such deposits have been made by Mortgage Borrower and Maryland Owner or any Senior Mezzanine Borrower pursuant to the Mortgage Loan Documents or the applicable Senior Mezzanine Loan Documents, in which case the making of such deposits shall be waived hereunder;
(m) Borrower shall have caused to be paid or reimbursed Lender for all costs and expenses incurred by Lender (including, without limitation, reasonable attorneys fees and disbursements) in connection with the release and substitution and Borrower shall have caused to be 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 caused to be paid all costs and expenses and fees of the Rating Agencies incurred by Mortgage Borrower and Maryland Owner in connection with the substitution; and
(n) such substitution shall not result in any breach of or noncompliance with any applicable REIT Representations and Covenants. Upon satisfaction or waiver of the foregoing conditions precedent, the Allocated Loan Amount of the Substitute Property shall be equal to the Allocated Loan Amount of the Substituted Property (and, if there is more than one Substitute Property, the Allocated Loan Amount of the Substituted Property shall be allocable to each such Substitute Property on a pro rata basis according to the Appraised Value thereof) (such date, the "Substitution Effective Date").
Appears in 1 contract
Samples: Mezzanine Loan Agreement (Archstone Smith Operating Trust)
Substitution of Properties. Subject to the terms of this Section 2.6, Borrower may cause Mortgage Borrower and Maryland Owner to obtain the release of one or more Borrower’s obligations under the Loan Documents with respect to an Individual Properties Property (each, a “Release Property”) by causing Mortgage Borrower to obtain, from time to time, a release of an Individual Property from the Lien of the related Security Instrument (and the related Loan Documents) and substituting therefor another industrial property of like kind and quality acquired by Mortgage thereon Borrower or an Affiliate of Mortgage Borrower (provided, however, if the Substitute Property shall be owned by an Affiliate of Mortgage Borrower said Affiliate (i) shall be wholly owned, (A) directly, by Borrower, and (B) indirectly, by Mezzanine A Borrower, Mezzanine C Borrower, Mezzanine D Borrower and Mezzanine E Borrower, (ii) shall assume all the obligations of Mortgage Borrower under the Mortgage Loan Agreement, the Mortgage Note and the other Loan Documents and (iii) shall become a party to the Mortgage Note and the other Mortgage Loan Documents and shall be bound by the terms and provisions thereof as if it had executed the Mortgage Note and the other Mortgage Loan Documents and shall have the rights and obligations of Mortgage Borrower thereunder) (individually, a “Substitute Property” and collectively, the “Substitute Properties”), provided that the following conditions precedent are satisfied:
(a) Borrower shall have either (a) delivered to Lender an agreement executed by Penn Traffic pursuant to which Penn Traffic has agreed that it shall not have any further right to substitute any Penn Traffic Property for a substitute property pursuant to Section 35 and Exhibit H of the Penn Traffic Lease or (b) obtained the release of Mortgage Borrower's and/or Maryland Owner's ’s obligations under the Mortgage Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such Individual Property, a "Substituted Property"), by substituting therefor one or more properties (such properties, individually and collectively as the context requires, "Substitute Property"), upon the satisfaction of each all of the following conditions:
(a) After giving effect Penn Traffic Properties pursuant to the proposed substitution, no Event of Default shall be continuing;Section 2.5.1 hereof.
(b) The aggregate Allocated Loan Amounts of the Individual Property being substituted and all of the other Properties that have been substituted prior to the substitution of the Individual Property in question (including any Penn Traffic Properties that have been substituted pursuant to Section 2.7 hereof), is equal to or less than ten percent (10%) of the aggregate Allocated Loan Amounts of all of the Properties (including the Release Property).
(c) Lender shall have received at least thirty (30) days' days prior written notice requesting the substitution and identifying the Substitute Property and the Substituted Release Property;.
(cd) All Borrower shall have delivered evidence satisfactory to Lender that (i)
(1) Mortgage Borrower and any Affiliate of Mortgage Borrower that owns the Substitute Property have complied with all of the terms and conditions to the substitution set forth in Section 2.5 2.6 of the Mortgage Loan Agreement and each Senior Mezzanine Loan Agreement shall have been satisfied and Lender shall have received evidence that all such conditions shall have been satisfied; provided that such evidence shall in all cases consist of the identical evidence or documentation provided to Mortgage Lender and each Senior Mezzanine Lender in satisfaction of such conditions;
(d) Lender shall have received an Officer's Certificate stating that (i) no Event of Default shall have occurred and be continuing, (ii) each of the representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects with respect to the Substitute Property release and substitution requested pursuant to this Section 2.6 and (2) Mortgage Lender has delivered (or is simultaneously delivering) such release to Mortgage Borrower; (ii)
(1) Mezzanine A Borrower and any Affiliate of Borrower that owns the Substitute Property as of the applicable Substitution Effective Date (on a pro forma basis giving effect to the proposed substitution) and (iii) that have complied with all of the terms and conditions of this set forth in Section 2.5 shall have been satisfied or waived;
(e) Lender shall have received such certified organizational documents, good standing certificates, qualifications to do business, resolutions and consents for the Substitute Property Borrower and the Substitute Property Operator in connection with the substitution as are requested by Mortgage Lender pursuant to Section 2.5(o) 2.6 of the Mortgage Mezzanine A Loan Agreement;
(f) Lender shall have received such lien, credit, bankruptcy, litigation and judgment searches Agreement with respect to the Substitute Property, release and substitution requested pursuant to this Section 2.6 and (2) Mezzanine A Lender has delivered (or is simultaneously delivering) such release to Mezzanine A Borrower; (iii)
(1) Mezzanine C Borrower and any Affiliate of Borrower that owns the Substitute Property Borrower, the Substitute Property Operator, any former owner and/or operator have complied with all of the Substitute Property terms and any direct or indirect owner thereof as are provided to Mortgage Lender pursuant to conditions set forth in Section 2.5(w) 2.6 of the Mortgage Mezzanine C Loan Agreement;
(g) Lender shall have received a mezzanine loan or similar endorsement (to the extent available, and if not available, a form of "comfort letter" in substantially the form delivered at closing, if available) to each owner's Title Insurance Policy insuring such Substitute Property as of the Substitution Effective Date. Lender also shall have received copies of paid receipts or a closing statement showing that all premiums in respect of such endorsements and Title Insurance Policies have been paid or will be paid at closing of the purchase of the Substitute Property;
(h) Lender shall have received from Borrower a copy of each document, agreement, financial statement, amendment, instrument, report, appraisal, opinion, survey, study or other communication delivered by Mortgage Borrower to Mortgage Lender in connection with such Substitution pursuant to Section 2.5 of the Mortgage Loan Agreement;
(i) Intentionally omitted;
(j) Lender shall have received the following opinions of Borrower's counsel: (i) copies of First Mezzanine Borrower's counsel's opinion as to the perfection and enforceability of the pledge of the ownership interests in the Substitute Property Borrower, (ii) copies of an opinion or opinions of counsel admitted in New York and Delaware opining as to such matters Agreement with respect to the release and substitution requested pursuant to this Section 2.6 and (2) Mezzanine C Lender has delivered (or is simultaneously delivering) such release to Mezzanine C Borrower; (iv)
(1) Mezzanine D Borrower and any Affiliate of Borrower that owns the Substitute Property Borrower have complied with all of the terms and conditions set forth in Section 2.6 of the documents and instruments delivered Mezzanine D Loan Agreement with respect to the release and substitution requested pursuant to this Section 2.6 and (2) Mezzanine D Lender has delivered (or is simultaneously delivering) such release to Mezzanine D Borrower; and (v)
(1) Mezzanine E Borrower and any Affiliate of Borrower that owns the Substitute Property have complied with such qualifications all of the terms and assumptions as conditions set forth in Section 2.6 of the opinions Mezzanine E Loan Agreement with respect to the Property delivered at the closing of the Mortgage Loan, which opinions and the counsel issuing the same would be acceptable to a prudent lender originating commercial mortgage loans for securitization similar to the Mortgage Loan, (iii) copies of so-called "Special Delaware" opinions with respect to the Substitute Property Borrower and the Substitute Property Operator issued by counsel admitted to practice in Delaware and with such qualifications and assumptions as the "Special Delaware" opinions with respect to Mortgage Borrower, Maryland Owner and Operator delivered at the closing of the Mortgage Loan, which opinions and counsel issuing the same shall otherwise be acceptable to the Rating Agencies, (iv) copies of an opinion of counsel with respect to such health care regulatory matters as are required by the Rating Agencies with respect to the Mortgage Loan, (v) copies of an opinion of counsel which would be acceptable to a prudent lender originating commercial mortgage loans for securitizations similar to the Mortgage Loan, and if after a Securitization of the Mortgage Loan, acceptable to the Rating Agencies, opining that subjecting the Substitute Property to the Lien of the related Substitute Property Lien Documents and the execution and delivery of the related Loan Documents does not and will not affect or impair the ability of Mortgage Lender to enforce its remedies under all of the Mortgage Loan Documents or to realize the benefits of the cross-collateralization provided for thereunder, (vi) if required by the Rating Agencies under the Mortgage Loan, an Additional True-Lease Opinion of counsel acceptable to the Rating Agencies under the Mortgage Loan, (vii) copies of an opinion of counsel acceptable to the Rating Agencies under the Mortgage Loan that the substitution does not constitute a "significant modification" of the Mortgage Loan under Section 1001 of the Code or otherwise cause a tax to be imposed on a "prohibited transaction" by any REMIC Trust and (viii) an update of the Insolvency Opinion indicating that the substitution does not affect the opinions set forth therein (it being agreed that any opinions contemplated by this paragraph which cover the same matters as opinions delivered on the Closing Date shall be of similar form and substance as those delivered on the Closing Date);
(k) Lender shall have received with respect to the Substitute Property Borrower and the Substitute Property, as applicable, (i) annual operating statements for the three (3) years immediately prior to the Substitution Effective Date, (ii) financial statements for the most current completed Fiscal Year in accordance with the requirements of Section 5.1.11 hereof, (iii) a current operating statement and (iv) an Officer's Certificate certifying that each of the foregoing presents fairly the financial condition and the results of operations of the Substitute Property Borrower and the Substitute Property and that there has been no material adverse change in the financial condition of the Substitute Property;
(l) Following the substitution of a Substituted Property in exchange for a Substitute Property in accordance with this Section 2.5, Lender shall adjust (if applicable) the amounts thereafter required to be deposited by Borrower into the Reserve Funds to reflect amounts required solely for the remaining Individual Properties and the Substitute Property after giving effect to such substitution, unless such deposits have been made by Mortgage Borrower and Maryland Owner or any Senior Mezzanine Borrower pursuant to the Mortgage Loan Documents or the applicable Senior Mezzanine Loan Documents, in which case the making of such deposits shall be waived hereunder;
(m) Borrower shall have caused to be paid or reimbursed Lender for all costs and expenses incurred by Lender (including, without limitation, reasonable attorneys fees and disbursements) in connection with the release and substitution and Borrower shall have caused requested pursuant to be 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 caused to be paid all costs and expenses and fees of the Rating Agencies incurred by Mortgage Borrower and Maryland Owner in connection with the substitution; and
(n) such substitution shall not result in any breach of or noncompliance with any applicable REIT Representations and Covenants. Upon satisfaction or waiver of the foregoing conditions precedent, the Allocated Loan Amount of the Substitute Property shall be equal to the Allocated Loan Amount of the Substituted Property (and, if there is more than one Substitute Property, the Allocated Loan Amount of the Substituted Property shall be allocable to each such Substitute Property on a pro rata basis according to the Appraised Value thereof) (such date, the "Substitution Effective Date").this
Appears in 1 contract
Samples: Mezzanine Loan Agreement (KBS Real Estate Investment Trust, Inc.)
Substitution of Properties. Borrower may cause Mortgage Borrower and Maryland Owner to obtain the release of one or more Individual Properties from the Lien of the Mortgage thereon and the release of Mortgage Borrower's ’s and/or Maryland Owner's ’s obligations under the Mortgage Loan Documents with respect to such Individual Property (other than those expressly stated to survive) (each such Individual Property, a "“Substituted Property"”), by substituting therefor one or more properties (such properties, individually and collectively as the context requires, "“Substitute Property"”), upon the satisfaction of each of the following conditions:
(a) After giving effect to the proposed substitution, no Event of Default shall be continuing;
(b) Lender shall have received at least thirty (30) days' ’ prior notice requesting the substitution and identifying the Substitute Property and the Substituted Property;
(c) All conditions to the substitution set forth in Section 2.5 of the Mortgage Loan Agreement and each Senior Mezzanine Loan Agreement shall have been satisfied and Lender shall have received evidence that all such conditions shall have been satisfied; provided that such evidence shall in all cases consist of the identical evidence or documentation provided to Mortgage Lender and each Senior Mezzanine Lender in satisfaction of such conditions;
(d) Lender shall have received an Officer's ’s Certificate stating that (i) no Event of Default shall have occurred and be continuing, (ii) each of the representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects with respect to the Substitute Property Borrower and the Substitute Property as of the applicable Substitution Effective Date (on a pro forma basis giving effect to the proposed substitution) and (iii) that all of the conditions of this Section 2.5 shall have been satisfied or waived;
(e) Lender shall have received such certified organizational documents, good standing certificates, qualifications to do business, resolutions and consents for the Substitute Property Borrower and the Substitute Property Operator in connection with the substitution as are requested by Mortgage Lender pursuant to Section 2.5(o) of the Mortgage Loan Agreement;
(f) Lender shall have received such lien, credit, bankruptcy, litigation and judgment searches with respect to the Substitute Property, the Substitute Property Borrower, the Substitute Property Operator, any former owner and/or operator of the Substitute Property and any direct or indirect owner thereof as are provided to Mortgage Lender pursuant to Section 2.5(w) of the Mortgage Loan Agreement;
(g) Lender shall have received a mezzanine loan or similar endorsement (to the extent available, and if not available, a form of "“comfort letter" ” in substantially the form delivered at closing, if available) to each owner's ’s Title Insurance Policy insuring such Substitute Property as of the Substitution Effective Date. Lender also shall have received copies of paid receipts or a closing statement showing that all premiums in respect of such endorsements and Title Insurance Policies have been paid or will be paid at closing of the purchase of the Substitute Property;
(h) Lender shall have received from Borrower a copy of each document, agreement, financial statement, amendment, instrument, report, appraisal, opinion, survey, study or other communication delivered by Mortgage Borrower to Mortgage Lender in connection with such Substitution pursuant to Section 2.5 of the Mortgage Loan Agreement;
(i) Intentionally omitted;
(j) Lender shall have received the following opinions of Borrower's ’s counsel: (i) copies of First Mezzanine Borrower's ’s counsel's ’s opinion as to the perfection and enforceability of the pledge of the ownership interests in the Substitute Property Borrower, (ii) copies of an opinion or opinions of counsel admitted in New York and Delaware opining as to such matters with respect to the Substitute Property Borrower and the documents and instruments delivered with respect to the substitution and with such qualifications and assumptions as the opinions with respect to the Property delivered at the closing of the Mortgage Loan, which opinions and the counsel issuing the same would be acceptable to a prudent lender originating commercial mortgage loans for securitization similar to the Mortgage Loan, (iii) copies of so-called "“Special Delaware" ” opinions with respect to the Substitute Property Borrower and the Substitute Property Operator issued by counsel admitted to practice in Delaware and with such qualifications and assumptions as the "“Special Delaware" ” opinions with respect to Mortgage Borrower, Maryland Owner and Operator delivered at the closing of the Mortgage Loan, which opinions and counsel issuing the same shall otherwise be acceptable to the Rating Agencies, (iv) copies of an opinion of counsel with respect to such health care regulatory matters as are required by the Rating Agencies with respect to the Mortgage Loan, (v) copies of an opinion of counsel which would be acceptable to a prudent lender originating commercial mortgage loans for securitizations similar to the Mortgage Loan, and if after a Securitization of the Mortgage Loan, acceptable to the Rating Agencies, opining that subjecting the Substitute Property to the Lien of the related Substitute Property Lien Documents and the execution and delivery of the related Loan Documents does not and will not affect or impair the ability of Mortgage Lender to enforce its remedies under all of the Mortgage Loan Documents or to realize the benefits of the cross-collateralization provided for thereunder, (vi) if required by the Rating Agencies under the Mortgage Loan, an Additional True-Lease Opinion of counsel acceptable to the Rating Agencies under the Mortgage Loan, (vii) copies of an opinion of counsel acceptable to the Rating Agencies under the Mortgage Loan that the substitution does not constitute a "“significant modification" ” of the Mortgage Loan under Section 1001 of the Code or otherwise cause a tax to be imposed on a "“prohibited transaction" ” by any REMIC Trust and (viii) an update of the Insolvency Opinion indicating that the substitution does not affect the opinions set forth therein (it being agreed that any opinions contemplated by this paragraph which cover the same matters as opinions delivered on the Closing Date shall be of similar form and substance as those delivered on the Closing Date);
(k) Lender shall have received with respect to the Substitute Property Borrower and the Substitute Property, as applicable, (i) annual operating statements for the three (3) years immediately prior to the Substitution Effective Date, (ii) financial statements for the most current completed Fiscal Year in accordance with the requirements of Section 5.1.11 hereof, (iii) a current operating statement and (iv) an Officer's ’s Certificate certifying that each of the foregoing presents fairly the financial condition and the results of operations of the Substitute Property Borrower and the Substitute Property and that there has been no material adverse change in the financial condition of the Substitute Property;
(l) Following the substitution of a Substituted Property in exchange for a Substitute Property in accordance with this Section 2.5, Lender shall adjust (if applicable) the amounts thereafter required to be deposited by Borrower into the Reserve Funds to reflect amounts required solely for the remaining Individual Properties and the Substitute Property after giving effect to such substitution, unless such deposits have been made by Mortgage Borrower and Maryland Owner or any Senior Mezzanine Borrower pursuant to the Mortgage Loan Documents or the applicable Senior Mezzanine Loan Documents, in which case the making of such deposits shall be waived hereunder;
(m) Borrower shall have caused to be paid or reimbursed Lender for all costs and expenses incurred by Lender (including, without limitation, reasonable attorneys fees and disbursements) in connection with the release and substitution and Borrower shall have caused to be 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 caused to be paid all costs and expenses and fees of the Rating Agencies incurred by Mortgage Borrower and Maryland Owner in connection with the substitution; and
(n) such substitution shall not result in any breach of or noncompliance with any applicable REIT Representations and Covenants. Upon satisfaction or waiver of the foregoing conditions precedent, the Allocated Loan Amount of the Substitute Property shall be equal to the Allocated Loan Amount of the Substituted Property (and, if there is more than one Substitute Property, the Allocated Loan Amount of the Substituted Property shall be allocable to each such Substitute Property on a pro rata basis according to the Appraised Value thereof) (such date, the "“Substitution Effective Date"”).
Appears in 1 contract
Samples: Loan Agreement (Hcp, Inc.)
