Substitution of Property. The Borrowers may from time to time provide substitute real property collateral (the “Substituted Property”) for any real property Collateral; provided that for each such substitution (a “Property Substitution”) the following conditions are satisfied with respect to such Property Substitution and the applicable Substituted Property: (a) no Default or Event of Default has occurred and is continuing both before and after giving effect to such Property Substitution; (b) the Flexibility Conditions are satisfied as of the date of and both before and immediately after giving effect to such Property Substitution; (c) the applicable Substituted Property is free and clear of all Liens other than Liens described in clauses (a), (b) and (e) of the definition of Permitted Liens; (d) Agent shall have received an appraisal (in form and substance and by an appraiser reasonably satisfactory to the Agent) for the applicable Substituted Property (the “Substituted Property Appraisal”), dated no more than six (6) months prior to the date of such Property Substitution; (e) the appraised value of the applicable Substituted Property, as set forth in the Substituted Property Appraisal shall be equal to or greater than the value, as reasonably determined by the Agent, of the portion of the Collateral being replaced (the “Replaced Property”); (f) the Agent shall have received each of the following: (i) a fully executed Mortgage (the “Substituted Property Mortgage”) with respect to each parcel of the Substituted Property, in substantially the form of the Mortgages delivered on or prior to the Closing Date, with such modifications thereto as shall be advisable and are reasonably acceptable to the Agent with respect to the local jurisdictions in which the Substitute Property is located; (ii) an ALTA extended coverage title policy or policies, in form and substance and in amounts and with such endorsements as are reasonably acceptable to the Agent, with respect to each Substituted Property Mortgage; (iii) duly executed UCC-3 Termination Statements or such other instruments or evidence, in form and substance satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens, if any, on the Substituted Property; and (iv) to the extent reasonably requested by the Agent or the Majority Lenders, environmental audits, surveys, title reports and any other document reasonably requested by the Agent, the Majority Lenders or any Lender, as applicable, with respect to the Substituted Property, in each case in form and substance satisfactory to the Agent, the Majority Lenders and such Lender, as applicable; and (v) opinions of counsel for the Borrower which is the owner of the Substituted Property as the Agent shall reasonably request, in a form, scope and substance reasonably satisfactory to the Agent and its counsel; (g) Borrowers shall have paid all reasonable costs related to such Property Substitution, including, but not limited to, reasonable attorney’s fees or fees related to appraisers, and consultants, filing fees and the cost of ALTA extended coverage title policies for the Substituted Property required above, in connection with any request for Property Substitution, and as a condition to such substitution, the Borrowers shall have provided evidence to the Agent that Borrowers have paid, or made arrangement satisfactory to the Agent for the payment of, all such costs which became due and payable prior to or concurrently with such Property Substitution; and (h) the Borrowers shall execute such other documents and agreements as the Agent may require to encumber the Substituted Property and amend the Loan Documents to reflect the replacement of the Substitute Property for the Replaced Property; and (i) no default or event of default has occurred and is continuing both before and after giving effect to such Property Substitution under the terms of any Subordinated Debt. Upon a substitution of Substituted Property pursuant to the provisions of this Section 2.8, all Liens on the Replaced Property in favor of the Agent for the benefit of itself and the Lenders shall be released and the Lenders hereby authorize the Agent to execute such documents and take such further action as reasonably requested by the Borrowers or determined by the Agent, in furtherance of this Section 2.8. For the avoidance of doubt, following the substitution of any Replaced Property with any Substituted Property in accordance with this Section 2.8, such Replaced Property shall no longer constitute Mortgaged Property, Term Loan Collateral or Real Estate Subfacility Assets for any purpose under this Agreement and Schedule 6.11 shall be deemed modified accordingly.
Appears in 1 contract
Substitution of Property. The Borrowers may from time to time provide substitute real property collateral (the “Substituted Property”) for any real property Collateral; provided that for each such substitution (a “Property Substitution”) the following conditions are satisfied with respect to such Property Substitution and the applicable Substituted Property:
(a) no Default or Event of Default has occurred and is continuing both before and after giving effect to such Property Substitution;
(b) the Flexibility Conditions are satisfied as of the date of and both before and immediately after giving effect to such Property Substitution;
(c) the applicable Substituted Property is free and clear of all Liens other than Liens described in clauses (a), (b) and (e) of the definition of Permitted Liens;
(d) Agent shall have received an appraisal (in form and substance and by an appraiser reasonably satisfactory to the Agent) for the applicable Substituted Property (the “Substituted Property Appraisal”), dated no more than six three (63) months prior to the date of such Property Substitution;
(e) the appraised value of the applicable Substituted Property, as set forth in the Substituted Property Appraisal shall be equal to or greater than the value, as reasonably determined by the Agent, of the portion of the Collateral being replaced (the “Replaced Property”);
(f) the Agent shall have received each of the following:
(i) a fully executed Mortgage (the “Substituted Property Mortgage”) with respect to each parcel of the Substituted Property, in substantially the form of the Mortgages delivered on or prior to as of the Closing Date, with such modifications thereto as shall be advisable and are reasonably acceptable to the Agent with respect to the local jurisdictions in which the Substitute Property is located;
(ii) an ALTA extended coverage title policy or policies, in form and substance and in amounts and with such endorsements as are reasonably acceptable to the Agent, with respect to each Substituted Property Mortgage;
(iii) duly executed UCC-3 Termination Statements or such other instruments or evidence, in form and substance satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens, if any, on the Substituted Property; and
(iv) to the extent reasonably requested by the Agent or the Majority LendersLenders (or if an Event of Default has occurred and is continuing, any Lender), environmental audits, surveys, title reports and any other document reasonably requested by the Agent, the Majority Lenders or any Lender, as applicable, with respect to the Substituted Property, in each case in form and substance satisfactory to the Agent, the Majority Lenders and such Lender, as applicable; and
(v) opinions of counsel for the Borrower which is the owner of the Substituted Property as the Agent shall reasonably request, in a form, scope and substance reasonably satisfactory to the Agent and its counsel;
(g) Borrowers shall have paid all reasonable costs related to such Property Substitution, including, but not limited to, reasonable attorney’s fees or fees related to appraisers, and consultants, filing fees and the cost of ALTA extended coverage title policies for the Substituted Property required above, in connection with any request for Property Substitution, and as a condition to such substitution, the Borrowers shall have provided evidence to the Agent that Borrowers have paid, or made arrangement satisfactory to the Agent for the payment of, all such costs which became due and payable prior to or concurrently with such Property Substitution; and
(h) the Borrowers shall execute such other documents and agreements as the Agent may require to encumber the Substituted Property and amend the Loan Documents to reflect the replacement of the Substitute Property for the Replaced Property; and
(i) no default or event of default has occurred and is continuing both before and after giving effect to such Property Substitution under the terms of any Subordinated Debt. Upon a substitution of Substituted Property pursuant to the provisions of this Section 2.8, all Liens on the Replaced Property in favor of the Collateral Agent for the benefit of itself and the Lenders shall be released and the Lenders hereby authorize the Agent to execute such documents and take such further action as reasonably requested by the Borrowers or determined by the Agent, in furtherance of this Section 2.8. For the avoidance of doubt, following the substitution of any Replaced Property with any Substituted Property in accordance with this Section 2.8, such Replaced Property shall no longer constitute Mortgaged Property, Term Loan Collateral or Real Estate Subfacility Assets for any purpose under this Agreement and Schedule 6.11 shall be deemed modified accordinglyreleased.”
Appears in 1 contract
Substitution of Property. The Subject to the terms and conditions set forth in this Section 11.5, the Borrowers may from time shall have the right to time provide substitute real property collateral obtain a release of the lien of the applicable Deed of Trust (and the “related Loan Documents) encumbering one or more Mortgaged Properties (for purposes of this section only, hereinafter referred to as, the "Substituted Property”") 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 Property 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 Leased Properties, subjecting the fee interest, or an easement interest, in such Ground Leased Property to the lien of a security instrument in favor of Lender as security for the Loan (individually, a "Replacement Property" and collectively, the "Replacement Properties"). In addition, any real property Collateral; provided that for each such substitution (each a “Property "Substitution”") shall be subject, in each case, to the satisfaction of the following conditions are satisfied with respect to such Property Substitution and the applicable Substituted Propertyprecedent:
(aA) no Default or No Event of Default has shall have occurred and is continuing both before and after giving effect to be continuing, unless the release of the Substituted Property will cure such Property Substitution;Event of Default.
(bB) The Borrowers shall have given Lender at least forty-five (45) days prior written notice of its election to seek a Substitution.
(C) The aggregate value of the Flexibility Conditions are satisfied Replacement Properties, as established by the Borrowers to the reasonable satisfaction of Lender, shall be at least equal to the aggregate value of the Substituted Property as of the date of and both before and immediately after preceding the Substitution.
(D) After giving effect to such Property the Substitution;, the Debt Service Coverage Ratio of the Loan is at least equal to the Debt Service Coverage Ratio of the Loan as of the date immediately preceding the Substitution.
(cE) the applicable Substituted Property is free and clear of all Liens other than Liens described in clauses (a), (b) and (e) of the definition of Permitted Liens;
(d) Agent 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 appraisal (easement interest in form and substance and by an appraiser favor of the Borrowers, such instrument shall be reasonably satisfactory to the Agent) for the applicable Substituted Property (the “Substituted Property Appraisal”)Lender, dated no more than six (6) months prior contain such Lender protections as are contained in similar instruments accepted by Lender at Closing, and is accompanied by an estoppel or similar instrument reasonably satisfactory to the date of such Property Substitution;Lender.
(eF) the appraised value of the applicable Substituted Property, as set forth in the Substituted Property Appraisal shall be equal to or greater than the value, as reasonably determined by the Agent, of the portion of the Collateral being replaced (the “Replaced Property”);
(f) the Agent The Borrowers shall have received each of the following:
executed, acknowledged and delivered to Lender (i) a fully executed Mortgage (the “Substituted Property Mortgage”) with respect mortgage, a deed of trust, or a deed to each parcel of the Substituted Property, in substantially the form of the Mortgages delivered on or prior to the Closing Date, with such modifications thereto as shall be advisable and are reasonably acceptable to the Agent with respect to the local jurisdictions in which the Substitute Property is located;
(ii) an ALTA extended coverage title policy or policies, in form and substance and in amounts and with such endorsements as are reasonably acceptable to the Agent, with respect to each Substituted Property Mortgage;
(iii) duly executed UCC-3 Termination Statements or such other instruments or evidence, in form and substance satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens, if any, on the Substituted Property; and
(iv) to the extent reasonably requested by the Agent or the Majority Lenders, environmental audits, surveys, title reports and any other document reasonably requested by the Agent, the Majority Lenders or any Lendersecure debt, as applicable, with respect to the Substituted Replacement Property, so as to effectively create upon recording and filing valid and enforceable liens upon the Replacement Property, of first priority, in each case in form and substance satisfactory favor of Lender (or such other trustee as may be desired under local law), subject only to the Agent, the Majority Lenders Permitted Encumbrances and such Lenderother liens as are permitted pursuant to the Loan Documents, (ii) an environmental indemnity with respect to the Replacement Property, (iii) written confirmation from each Guarantor regarding such Substitution, (iv) modifications to the Loan Documents as applicable; and
Lender deems desirable to properly reflect the Substitution, and (v) opinions of counsel for the Borrower which is the owner of the Substituted Property as the Agent shall reasonably request, in a form, scope and substance reasonably satisfactory to the Agent and its counsel;
(g) Borrowers shall have paid all reasonable costs related to such Property Substitution, including, but not limited to, reasonable attorney’s fees or fees related to appraisers, and consultants, filing fees and the cost of ALTA extended coverage title policies for the Substituted Property required above, in connection with any request for Property Substitution, and as a condition to such substitution, the Borrowers shall have provided evidence to the Agent that Borrowers have paid, or made arrangement satisfactory to the Agent for the payment of, all such costs which became due and payable prior to or concurrently with such Property Substitution; and
(h) the Borrowers shall execute such other documents and agreements as reasonably requested to evidence the Agent Substitution. The security instrument and environmental indemnity shall be in the same form and substance as the counterparts of such documents executed and delivered with respect to the Substituted Property, subject to modifications reflecting the Replacement Property as the property that is the subject of such documents and such modifications reflecting the laws of the State in which the Replacement Property is located.
(G) Lender shall have received (i) a title insurance policy (or a marked, signed and redated commitment to issue such title insurance policy) reasonably satisfactory to Lender insuring the lien of the security instrument encumbering the Replacement Property, 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 Lender in connection with the Deeds of Trust to reflect the 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.
(H) The Borrowers shall deliver or cause to be delivered to Lender resolutions, if any are required, authorizing the Substitution and any actions taken in connection with such Substitution.
(I) Lender shall have received such opinions as may require be reasonably requested with respect to encumber the Loan Documents delivered with respect to the Replacement Property, the Borrower's qualification, and authorization substantially in the form delivered at Closing, together with an update of the insolvency opinion 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 Note under Section 1001 of the Code.
(J) The Borrowers shall have paid or reimbursed Lender for all third party out-of-pocket costs and expenses incurred by 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.
(K) Lender shall have received a database search environmental report prepared by Xxxxxx and Associates (or another consultant reasonably acceptable to Lender) on the Replacement Property, together with a Phase I or Phase II environment assessment report (if any database search environmental report reveals any condition that in Lender's reasonable judgment warrants such a report) which concludes that the subject property 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.
(L) Lender shall have received a physical conditions report with respect to the Replacement Property from a nationally recognized structural consultant approved by Lender in a form recognized and approved by Lender prior to such release and Substitution stating that the Replacement Property and its use comply in all material respects with applicable legal requirements of the Governmental Authorities and that the Replacement Property is in good condition and repair and free of damage or waste.
(M) Except with respect to any Substitution converting Ground Leased Properties to fee or easement owned properties, or in connection with a Substitution to cure a Default, if (1) the aggregate Allocated Loan Amount of all Substituted Properties during any calendar year exceeds five percent (5%) of the original Principal Amount of the Loan (with any excess limit permitted to be carried over into subsequent years), (2) the percentage of Operating Revenues from the applicable Replacement Property represented by telephony and investment grade tenants (taken together) is less than that from the Substituted Property, (3) the Substitute Property will be subject to a Ground Lease with a term (including all available extensions) of less than fifteen (15) years following the applicable Substitution, (4) the weighted average remaining term of the Leases with respect to the Replacement Properties is shorter than the weighted average remaining term of the Leases with respect to the Substituted Property, or (5) the Maintenance Capital Expenditures for the Replacement Properties are materially greater than the Maintenance Capital Expenditures for the Substituted Property, the Borrowers shall have delivered Rating Confirmation.
(N) On or prior to the date of Substitution, the Borrowers shall deliver 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 applicable representations and warranties as of that date.
(O) Immediately following such Substitution, the Substituted Property and amend will be owned by a Person other than the Loan Documents Borrowers or any of their Affiliates (unless such Substitution is effectuated to reflect cure a Default, in which event the replacement Substituted Property may be owned by an Affiliate of the Substitute Property for Borrowers). Upon the Replaced Property; and
satisfaction of the foregoing conditions precedent, as reasonably determined by Lender, (i) no default or event of default has occurred and is continuing both before and after giving effect to such Property Substitution under Lender will release its lien from the terms of any Subordinated Debt. Upon a substitution of Substituted Property pursuant to the provisions of this Section 2.8, all Liens on the Replaced Property in favor of the Agent for the benefit of itself and the Lenders shall be released and the Lenders hereby authorize the Agent to execute such documents and take such further action as reasonably requested by the Borrowers or determined by the Agent, in furtherance of this Section 2.8. For the avoidance of doubt, following the substitution of any Replaced Property with any Substituted Property in accordance with this Section 2.8, such Replaced Property shall no longer constitute Mortgaged Property, Term Loan Collateral or Real Estate Subfacility Assets for any purpose under this Agreement and Schedule 6.11 (ii) the Replacement Property shall be deemed modified accordinglyto be a "Mortgaged Property" hereunder, (iii) all references herein to the Deeds of Trust shall include the applicable security instrument encumbering the Replacement Property, and (iv) the applicable Allocated Loan Amount with respect to the Substituted Property shall be deemed to be the Allocated Loan Amount with respect to the Replacement Property for all purposes hereunder.
Appears in 1 contract
Substitution of Property. The Subject to the terms and conditions set forth in this Section 11.5, the Borrowers may from time shall have the right to time provide substitute real property collateral obtain a release of the lien of the applicable Deed of Trust (and the “related Loan Documents) encumbering one or more Mortgaged Properties (for purposes of this section only, hereinafter referred to as, the "Substituted Property”") 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 Property 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 Leased Properties, subjecting the fee interest, or an easement interest, in such Ground Leased Property to the lien of a security instrument in favor of Lender as security for the Loan (individually, a "Replacement Property" and collectively, the "Replacement Properties"). In addition, any real property Collateral; provided that for each such substitution (each a “Property "Substitution”") shall be subject, in each case, to the satisfaction of the following conditions are satisfied with respect to such Property Substitution and the applicable Substituted Propertyprecedent:
(aA) no Default or No Event of Default has shall have occurred and is continuing both before and after giving effect to be continuing, unless the release of the Substituted Property will cure such Property Substitution;Event of Default.
(bB) The Borrowers shall have given Lender at least forty-five (45) days prior written notice of its election to seek a Substitution.
(C) The aggregate value of the Flexibility Conditions are satisfied Replacement Properties, as established by the Borrowers to the reasonable satisfaction of Lender, shall be at least equal to the Allocated Loan Amount of the Substituted Property as of the date of and both before and immediately after preceding the Substitution.
(D) After giving effect to such Property the Substitution;, the Debt Service Coverage Ratio is at least equal to the Debt Service Coverage Ratio as of the date immediately preceding the Substitution.
(cE) The Borrowers shall deliver or cause to be delivered to Lender a copy of the instrument conveying to the applicable Substituted Property is free and clear of all Liens other than Liens described Borrower the transferred interests and, if such instrument creates a leasehold interest or an easement interest in clauses (a), (b) and (e) favor of the definition of Permitted Liens;
(d) Agent Borrowers, such instrument shall have received an appraisal (in form and substance and by an appraiser be reasonably satisfactory to the Agent) for the applicable Substituted Property (the “Substituted Property Appraisal”)Lender, dated no more than six (6) months prior contain such Lender protections as are contained in similar instruments accepted by Lender at Closing, and is accompanied by an estoppel or similar instrument reasonably satisfactory to the date of such Property Substitution;Lender.
(eF) the appraised value of the applicable Substituted Property, as set forth in the Substituted Property Appraisal shall be equal to or greater than the value, as reasonably determined by the Agent, of the portion of the Collateral being replaced (the “Replaced Property”);
(f) the Agent The Borrowers shall have received each of the following:
executed, acknowledged and delivered to Lender (i) a fully executed Mortgage (the “Substituted Property Mortgage”) with respect mortgage, a deed of trust, or a deed to each parcel of the Substituted Property, in substantially the form of the Mortgages delivered on or prior to the Closing Date, with such modifications thereto as shall be advisable and are reasonably acceptable to the Agent with respect to the local jurisdictions in which the Substitute Property is located;
(ii) an ALTA extended coverage title policy or policies, in form and substance and in amounts and with such endorsements as are reasonably acceptable to the Agent, with respect to each Substituted Property Mortgage;
(iii) duly executed UCC-3 Termination Statements or such other instruments or evidence, in form and substance satisfactory to the Agent, as shall be necessary to terminate and satisfy all Liens, if any, on the Substituted Property; and
(iv) to the extent reasonably requested by the Agent or the Majority Lenders, environmental audits, surveys, title reports and any other document reasonably requested by the Agent, the Majority Lenders or any Lendersecure debt, as applicable, with respect to the Substituted Replacement Property, so as to effectively create upon recording and filing valid and enforceable liens upon the Replacement Property, of first priority, in each case in form and substance satisfactory favor of Lender (or such other trustee as may be desired under local law), subject only to the Agent, the Majority Lenders Permitted Encumbrances and such Lenderother liens as are permitted pursuant to the applicable Loan Documents, (ii) an environmental indemnity with respect to the Replacement Property, (iii) written confirmation from each Guarantor regarding such Substitution, (iv) modifications to the applicable Loan Documents as applicable; and
Lender deems desirable to properly reflect the Substitution, and (v) opinions of counsel for the Borrower which is the owner of the Substituted Property as the Agent shall reasonably request, in a form, scope and substance reasonably satisfactory to the Agent and its counsel;
(g) Borrowers shall have paid all reasonable costs related to such Property Substitution, including, but not limited to, reasonable attorney’s fees or fees related to appraisers, and consultants, filing fees and the cost of ALTA extended coverage title policies for the Substituted Property required above, in connection with any request for Property Substitution, and as a condition to such substitution, the Borrowers shall have provided evidence to the Agent that Borrowers have paid, or made arrangement satisfactory to the Agent for the payment of, all such costs which became due and payable prior to or concurrently with such Property Substitution; and
(h) the Borrowers shall execute such other documents and agreements as reasonably requested to evidence the Agent Substitution. The security instrument and environmental indemnity shall be in the same form and substance as the counterparts of such documents executed and delivered with respect to the Substituted Property, subject to modifications reflecting the Replacement Property as the property that is the subject of such documents and such modifications reflecting the laws of the State in which the Replacement Property is located.
(G) Lender shall have received (i) a title insurance policy (or a marked, signed and redated commitment to issue such title insurance policy) reasonably satisfactory to Lender insuring the lien of the security instrument encumbering the Replacement Property, 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 Lender in connection with the Deeds of Trust to reflect the 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.
(H) The Borrowers shall deliver or cause to be delivered to Lender resolutions, if any are required, authorizing the Substitution and any actions taken in connection with such Substitution.
(I) Lender shall have received such opinions as may require be reasonably requested with respect to encumber the Loan Documents delivered with respect to the Replacement Property, the applicable Borrower's qualification, and authorization substantially in the form delivered at Closing, together with an update of the insolvency opinion 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 Note under Section 1001 of the Code.
(J) The Borrowers shall have paid or reimbursed Lender for all third party out-of-pocket costs and expenses incurred by 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.
(K) Lender shall have received a database search environmental report prepared by Xxxxxx and Associates (or another consultant reasonably acceptable to Lender) on the Replacement Property, together with a Phase I or Phase II environment assessment report (if any database search environmental report reveals any condition that in Lender's reasonable judgment warrants such a report) which concludes that the subject property 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.
(L) Lender shall have received a physical conditions report with respect to the Replacement Property from a nationally recognized structural consultant approved by Lender in a form recognized and approved by Lender prior to such release and Substitution stating that the Replacement Property and its use comply in all material respects with applicable legal requirements of the Governmental Authorities and that the Replacement Property is in good condition and repair and free of damage or waste.
(M) Except with respect to any Substitution converting Ground Leased Properties to fee or easement owned properties, or in connection with a Substitution to cure a Default, if (1) the aggregate Allocated Loan Amount of all Substituted Properties during any calendar year exceeds five percent (5%) of the original Principal Amount of all of the Loans in the aggregate (with any excess limit permitted to be carried over into subsequent years), (2) the percentage of Operating Revenues from the applicable Replacement Property represented by telephony and investment grade tenants (taken together) is less than that from the Substituted Property, (3) the Substitute Property will be subject to a Ground Lease with a term (including all available extensions) of less than fifteen (15) years following the applicable Substitution, (4) the weighted average remaining term of the Leases with respect to the Replacement Properties is shorter than the weighted average remaining term of the Leases with respect to the Substituted Property, or (5) the Maintenance Capital Expenditures for the Replacement Properties are materially greater than the Maintenance Capital Expenditures for the Substituted Property, the Borrowers shall have delivered Rating Confirmation.
(N) On or prior to the date of Substitution, the Borrowers shall deliver 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 applicable representations and warranties as of that date.
(O) Immediately following such Substitution, the Substituted Property and amend the Loan Documents to reflect the replacement of the Substitute Property for the Replaced Property; and
will be owned by a Person other than (i) no default or event of default has occurred and is continuing both before and after giving effect to such Property Substitution under the terms of any Subordinated Debt. Upon a substitution of Substituted Property pursuant to the provisions of this Section 2.8, all Liens on the Replaced Property in favor of the Agent for the benefit of itself and the Lenders shall be released and the Lenders hereby authorize the Agent to execute such documents and take such further action as reasonably requested by the Borrowers or (ii) any of their Affiliates for a period of more than ninety (90) days unless agreed to by Lender, not to be unreasonably withheld, conditioned or delayed (unless such Substitution is effectuated to cure a Default, in which event the Substituted Property may be owned by an Affiliate of the Borrowers). Upon the satisfaction of the foregoing conditions precedent, as reasonably determined by Lender, (i) Lender will release its lien from the Agent, in furtherance of this Section 2.8. For the avoidance of doubt, following the substitution of any Replaced Property with any Substituted Property in accordance with this Section 2.8, such Replaced Property shall no longer constitute Mortgaged Property, Term Loan Collateral or Real Estate Subfacility Assets for any purpose under this Agreement and Schedule 6.11 (ii) the Replacement Property shall be deemed modified accordinglyto be a "Mortgaged Property" hereunder, (iii) all references herein to the Deeds of Trust shall include the applicable security instrument encumbering the Replacement Property, and (iv) the applicable Allocated Loan Amount with respect to the Substituted Property shall be deemed to be the Allocated Loan Amount with respect to the Replacement Property for all purposes hereunder.
Appears in 1 contract
