Conditions to Substitution. On the Substitution Date, the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor of the following: (a) an Officer's Certificate certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee; (b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor; (c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made; (d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor; (e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII; (f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property; (g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessor.
Appears in 5 contracts
Sources: Lease Agreement (Medical Properties Trust Inc), Lease Agreement (Medical Properties Trust Inc), Lease Agreement (Medical Properties Trust Inc)
Conditions to Substitution. On the Substitution Date, the No substitution of a Collateral Asset with a Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor Loan shall occur unless each of the followingfollowing conditions is satisfied (or waived by the Administrative Agent) as of the date of such substitution, after giving effect to such substitution, all other substitutions of Collateral Assets occurring substantially concurrently and all sales or purchases of Collateral Assets previously or substantially concurrently committed to:
(a) an Officer's Certificate certifying that (i) the such Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor Loan is any condemnation or eminent domain proceeding pending with respect thereto; an Eligible Collateral Asset;
(ii) all permitseach Collateral Quality Test is satisfied or, licenses if it is not satisfied, maintained or improved and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreementsy) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; Borrowing Base Test is satisfied;
(iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; [reserved];
(iv) there are no mechanics' Default or materialmen's liens outstanding Event of Default has occurred and is continuing (before or threatened after giving effect to such substitution of Collateral Assets, all other substitutions occurring substantially concurrently and all sales or purchases of Collateral Assets previously or substantially concurrently committed to), unless such Default or Event of Default will be cured upon giving effect to such transactions and the knowledge application of Lessee against the Substitute Property arising out proceeds thereof;
(v) the Borrower (or the Collateral Manager acting on its behalf) shall notify the Administrative Agent of or any amount to be deposited into the Collection Account in connection with any such substitution and shall deliver to the construction of Custodian the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if Required Loan Documents for such contest is resolved in favor of the mechanic or materialman; Substitute Loan;
(vi) upon confirmation of the delivery of a Substitute Loan for each applicable Collateral Asset being substituted for (the date of such confirmation or delivery, the “Retransfer Date”), each applicable Collateral Asset being substituted for shall be removed from the Collateral and the applicable Substitute Loan(s) shall be included in the Collateral. On the Retransfer Date of a Collateral Asset, the Collateral Agent, for the benefit of the Secured Parties, shall automatically and without further action be deemed to release and transfer to the best knowledge Borrower, without recourse, representation or warranty, all the right, title and interest of Lesseethe Collateral Agent, there exists no Event for the benefit of Default the Secured Parties in, to and under this Leasesuch Collateral Asset being substituted for. The Collateral Agent, for the benefit of the Secured Parties, shall, at the sole expense of the Borrower, execute such documents and instruments of transfer as may be prepared by the Collateral Manager, on behalf of the Borrower, and no defense, offset or claim exists with respect take such other actions as shall reasonably be requested by the Borrower to any sums effect the release and transfer of such Collateral Asset pursuant to be paid by Lessee hereunder, and this Section 10.03; and
(vii) any exceptions to Lessor's title the Borrower shall deliver to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from Administrative Agent on the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessorsubstitution a Borrowing Base Calculation Statement.
Appears in 4 contracts
Sources: Amendment No. 2 to Facility Documents (Blue Owl Technology Income Corp.), Credit and Security Agreement (Blue Owl Credit Income Corp.), Credit and Security Agreement (Blue Owl Technology Income Corp.)
Conditions to Substitution. On the Substitution Date, the No substitution of a Collateral Loan with a Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor Loan shall occur unless each of the following:following conditions is satisfied as of the date of such substitution (as certified to the Agents by the Borrower (or the Collateral Manager on behalf of the Borrower)):
(a) an Officer's Certificate certifying that (i) each Substitute Loan satisfies the Substitute Property has been accepted by Lessee for all purposes eligibility criteria set forth in the definition of this Lease and there has been no material damage to the improvements located Collateral Loan on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; date of substitution;
(ii) all permitsafter giving effect to any such substitution, licenses each Coverage Test is satisfied (or if any such Coverage Test is not satisfied, such test is maintained or improved after giving effect to such substitution);
(iii) the sum of the Principal Balances of such Substitute Loans shall be equal to or greater than the sum of the Principal Balances of the Collateral Loans being substituted for;
(iv) no Default or Event of Default has occurred and certificates is continuing (before or after giving effect to such substitution);
(v) no selection procedure adverse to the interests of the Secured Parties was utilized by the Borrower or the Collateral Manager in the selection of the Substitute Loan(s) or the Collateral Loans being substituted for;
(vi) the Borrower and the Collateral Manager (on behalf of the Borrower) shall agree to pay the legal fees and expenses of the Administrative Agent and the Collateral Agent in connection with any such substitution (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or expenses incurred in connection with the construction release of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor Lien of the mechanic Collateral Agent on behalf of the Secured Parties in connection with such sale, substitution or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and repurchase);
(vii) the Borrower shall notify the Administrative Agent of any exceptions amount to Lessor's title be deposited into the Collection Account in connection with any such substitution and shall deliver to the Custodian the Related Documents for any Substitute Property do not materially interfere with the intended use of the Substitute Property by LesseeLoans;
(bviii) upon confirmation of the delivery of a deed with full warranties conveying Substitute Loan for each applicable Collateral Loan being substituted for (the date of such confirmation or delivery, the “Retransfer Date”), each applicable Collateral Loan being substituted for shall be removed from the Collateral and the applicable Substitute Loan(s) shall be included in the Collateral. On the Retransfer Date of a Collateral Loan, the Collateral Agent, for the benefit of the Secured Parties, shall automatically and without further action be deemed to Lessor title release and transfer to the Substitute Property free Borrower, without recourse, representation or warranty, all the right, title and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description interest of the land shall refer to the Substitute PropertyCollateral Agent, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with benefit of the requirements Secured Parties in, to and under such Collateral Loan being substituted for. The Collateral Agent, for the benefit of Section 21.1 the Secured Parties, shall, at the sole expense of the Borrower, execute such documents and (iii) such other changes therein instruments of transfer as may be necessary or appropriate under prepared by the circumstances Collateral Manager, on behalf of the Borrower, and take other such actions as shall reasonably be made;requested by the Collateral Manager on behalf of the Borrower to effect the release and transfer of such Collateral Loan pursuant to this Section 10.03; and
(dix) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy Borrower shall (i) insure (A) Lessor's fee title deliver to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from Administrative Agent on the date of opening for business such substitution a certificate of a Responsible Officer certifying that each of the facility on foregoing is true and correct as of such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessordate.
Appears in 4 contracts
Sources: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)
Conditions to Substitution. On the Substitution Date, the No substitution of a Collateral Loan with a Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor Loan shall occur unless each of the following:following conditions is satisfied as of the date of such substitution (as certified to the Agents by the Borrower (or the Collateral Manager on behalf of the Borrower)):
(a) an Officer's Certificate certifying that (i) the each Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located Loan is an Eligible Collateral Loan on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; date of substitution;
(ii) all permitsafter giving effect to any such substitution, licenses each Collateral Quality Test is satisfied (or, if not satisfied immediately prior to such investment, compliance with such Collateral Quality Test is maintained or improved), and certificates each Coverage Test is satisfied;
(iii) the sum of the Principal Balances of such Substitute Loans shall be equal to or greater than the sum of the Principal Balances of the Collateral Loans being substituted for;
(iv) no Default or Event of Default has occurred and is continuing (before or after giving effect to such substitution);
(v) no selection procedure adverse to the interests of the Secured Parties was utilized by the Borrower or the Collateral Manager in the selection of the Substitute Loan(s) or the Collateral Loans being substituted for;
(vi) the Borrower and the Collateral Manager (on behalf of the Borrower) shall agree to pay the legal fees and expenses of the Administrative Agent and the Collateral Agent in connection with any such substitution (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or expenses incurred in connection with the construction release of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor Lien of the mechanic Collateral Agent on behalf of the Secured Parties in connection with such sale, substitution or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and repurchase);
(vii) the Borrower shall notify the Administrative Agent of any exceptions amount to Lessor's title be deposited into the Collection Account in connection with any such substitution and shall deliver to the Custodian the Related Documents for any Substitute Property do not materially interfere with the intended use of the Substitute Property by LesseeLoans;
(bviii) upon confirmation of the delivery of a deed with full warranties conveying Substitute Loan for each applicable Collateral Loan being substituted for (the date of such confirmation or delivery, the “Retransfer Date”), each applicable Collateral Loan being substituted for shall be removed from the Collateral and the applicable Substitute Loan(s) shall be included in the Collateral. On the Retransfer Date of a Collateral Loan, the Collateral Agent, for the benefit of the Secured Parties, shall automatically and without further action be deemed to Lessor title release and transfer to the Substitute Property free Borrower, without recourse, representation or warranty, all the right, title and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description interest of the land shall refer to the Substitute PropertyCollateral Agent, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with benefit of the requirements Secured Parties in, to and under such Collateral Loan being substituted for. The Collateral Agent, for the benefit of Section 21.1 the Secured Parties, shall, at the sole expense of the Borrower, execute such documents and (iii) such other changes therein instruments of transfer as may be necessary or appropriate under prepared by the circumstances Collateral Manager, on behalf of the Borrower, and take other such actions as shall reasonably be made;requested by the Collateral Manager on behalf of the Borrower to effect the release and transfer of such Collateral Loan pursuant to this Section 10.03; and
(dix) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy Borrower shall (i) insure (A) Lessor's fee title deliver to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from Administrative Agent on the date of opening for business such substitution a certificate of a Responsible Officer certifying that each of the facility on foregoing is true and correct as of such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessordate.
Appears in 4 contracts
Sources: Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.), Revolving Credit and Security Agreement (PennantPark Floating Rate Capital Ltd.)
Conditions to Substitution. On the Substitution Date, the No substitution of a Collateral Loan with a Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor Loan shall occur unless each of the following:following conditions is satisfied as of the date of such substitution (as certified to the Agents by the Borrower (or the Collateral Manager on behalf of the Borrower)):
(a) an Officer's Certificate certifying that (i) each Substitute Loan satisfies the Substitute Property has been accepted by Lessee for all purposes eligibility criteria set forth in the definition of this Lease and there has been no material damage to the improvements located an Eligible Loan on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; date of substitution;
(ii) all permitsafter giving effect to any such substitution, licenses each Coverage Test is satisfied (or if any such Coverage Test is not satisfied, such test is maintained or improved after giving effect to such substitution) and certificates each Portfolio Quality Test is satisfied (or if any Portfolio Quality Test is not satisfied, such test is maintained or improved after giving effect to such substitution);
(iii) 100% of the proceeds from the sale of the Collateral Loan(s) to be replaced in connection with such Substitute Loan are either applied by the Borrower to acquire the Substitute Loan(s) or deposited in the Principal Collection Subaccount;
(iv) no Default or Event of Default has occurred and is continuing (before or after giving effect to such substitution);
(v) there is no adverse selection, impacting the interest of the Secured Parties, by the Borrower or Collateral Manager with regard to such Collateral Loans to be substituted or the Substitute Loans;
(vi) the Borrower and, if the Collateral Manager is the initial Collateral Manager or an Affiliate of the Borrower or the BDC, the Collateral Manager (on behalf of the Borrower) shall agree to pay the legal fees and expenses of the Administrative Agent and the Collateral Agent in connection with any such substitution (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or expenses incurred in connection with the construction release of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor Lien of the mechanic Collateral Agent on behalf of the Secured Parties in connection with such sale, substitution or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and repurchase);
(vii) the Borrower shall notify the Administrative Agent of any exceptions amount to Lessor's title be deposited into the Collection Account in connection with any such substitution and shall deliver to the Document Custodian the Related Documents for any Substitute Property do not materially interfere with the intended use of the Substitute Property by LesseeLoans;
(bviii) upon confirmation of the delivery of a deed with full warranties conveying to Lessor title to Substitute Loan for each applicable Collateral Loan being substituted for, each applicable Collateral Loan being substituted for shall be removed from the Collateral and the applicable Substitute Property free and clear of any liens and encumbrances except those approved or assumed by LessorLoan(s) shall be included in the Collateral;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (iix) the legal description of the land Borrower shall refer deliver to the Substitute Property, Administrative Agent (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title copy to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (BCollateral Agent) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from on the date of opening for business such substitution a certificate of a Responsible Officer of the facility on Borrower certifying that each of the foregoing is true and correct as of such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is lessdate; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessor.and
Appears in 3 contracts
Sources: Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp), Revolving Credit and Security Agreement (Monroe Capital Income Plus Corp)
Conditions to Substitution. On In addition to the requirements in Section 2.7(b) above, substitution of any Property pursuant to this Section 2.7 shall be subject to the satisfaction of the following, all of which shall be prepared or obtained at Borrower’s expense:
(i) simultaneously with the Substitution, Borrower shall convey fee simple title to the Replaced Property to a Person other than Borrower;
(ii) Intentionally Deleted;
(iii) Intentionally Deleted;
(iv) receipt by Lender and the Rating Agencies of written notice thereof from Borrower at least thirty (30) days before the date of the proposed Substitution (the “Substitution Date”), together with (1) written evidence that the property proposed to be a Substitute Property complies with Section 2.7(b) above and (2) such other information, including financial information, as Lender or the Rating Agencies may request;
(v) Lender’s receipt of written affirmation from the Rating Agencies that the ratings of the Securities immediately prior to such Substitution will not be qualified, downgraded or withdrawn as a result of such Substitution, which affirmation may be granted or withheld in the Rating Agencies’ sole and absolute discretion;
(vi) delivery to Lender of an opinion of counsel opining as to the enforceability of the Substitute Security Instrument with respect to the Substitute Property will become in substantially the Leased same form and substance as the opinion of counsel concerning enforceability originally delivered at the Closing Date in connection with the Replaced Property, with reasonable allowance for variations in applicable State law, and a Nondisqualification Opinion and a Tax Opinion;
(vii) no Event of Default shall have occurred and be continuing;
(viii) the representations and warranties set forth in this Agreement, in the Security Instrument and the Loan Documents applicable to the Replaced Property hereunder upon shall be true and correct (except as to title exceptions) as to the Substitute Property on the Substitution Date in all material respects;
(ix) delivery to Lender of a copy of the organizational documents of Borrower and all amendments thereto, certified as true, complete and correct as of the date of delivery by Lessee an Officer’s Certificate; a certificate from the secretary of the State or other applicable State official or officer in Borrower’s State of formation certifying that it is duly formed and in good standing (with tax clearance, if applicable), if available, and certificates from the Secretary of State of the State in which the Substitute Property is located (if such certificates are issued), certifying as to Lessor Borrower’s good standing as a limited liability company in such State (with tax clearance, if applicable); delivery of an Officer’s Certificate, dated the Substitution Date and signed on behalf of its Secretary or Assistant Secretary, certifying the names of the officers of the general partner of the sole member of Borrower authorized to execute and deliver, in the name and on behalf of Borrower, the Security Instrument, Assignment of Leases, UCC Financing Statements, and the other Loan Documents pertaining to such Substitute Property to which Borrower is a party, together with the original (not photocopied) signatures of such officers;
(x) delivery to Lender of an Officer’s Certificate certifying to the veracity of the statements in Subsections 2.7(b)(ii), 2.7(b)(iii), 2.7(b)(iv), 2.7(b)(vii), 2.7(c)(viii), and 2.7(c)(ix) hereof;
(xi) delivery to Lender of originals of the following:
(a1) an Officer's Certificate certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease Borrower shall have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lesseeto Lender a Security Instrument, containing an Assignment of Leases and two UCC Financing Statements (to the same terms extent execution and conditions as acknowledgment are contained herein except that (irequired) the legal description of the land shall refer with respect to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent together with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor letter from Borrower countersigned by a title insurance company satisfactory acknowledging receipt of such Security Instrument, Assignment of Leases and UCC-1 Financing Statements and agreeing to Lessorrecord or file, as applicable, such Security Instrument, Assignment of Leases and Rents and, with regard to the UCC-1 Financing Statements, if recordation or a system of filing is accepted or established in the applicable jurisdiction, one of the UCC-1 Financing Statements in the real estate records for the county in which the Substitute Property is located and, subject to local law, rule or custom, to file one of the UCC-1 Financing Statements in the office of the Secretary of State of the State in which Borrower has been formed, so as to effectively create upon such recording and filing valid and enforceable Liens upon the Substitute Property, of the requisite priority, in favor of Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents. Such policy The Security Instrument, Assignment of Leases and UCC-1 Financing Statements shall be the same in form and substance as the counterparts of such documents executed and delivered with respect to the related Replaced Property subject to modifications reflecting the Substitute Property as the Property that is the subject of such documents and such modifications reflecting the laws of the State in which the Substitute Property is located as shall be recommended by the counsel admitted to practice in such State and delivering the opinion of counsel as to the enforceability of such documents required pursuant to this Section. The Security Instrument encumbering the Substitute Property shall secure all amounts evidenced by the Note, provided that in the event that the jurisdiction in which the Substitute Property is located imposes a mortgage recording, intangibles or similar tax and does not permit the allocation of indebtedness for the purpose of determining the amount of such tax payable, the principal amount secured by such Security Instrument shall be equal to one hundred fifty percent (i150%) insure (A) Lessor's fee title of the amount of the Loan allocated to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e2) certificates Lender shall have received (A) any “tie-in” or similar endorsement to each Title Insurance Policy insuring the Lien of insurance the Security Instrument as of the date of the substitution available with respect to the Title Insurance Policy insuring the Lien of the Security Instrument with respect to the Substitute Property fulfilling and (B) a Title Insurance Policy (or a marked, signed and redated commitment to issue such Title Insurance Policy) insuring the requirements Lien of Article XIIIthe Security Instrument encumbering the Substitute Property, issued by the title company that issued the Title Insurance Policies insuring the Lien of the Security Instrument and dated as of the date of the substitution, with reinsurance and direct access agreements that replace such agreements issued in connection with the Title Insurance Policy insuring the Lien of the Security Instrument encumbering the Replaced Property. The Title Insurance Policy issued with respect to the Substitute Property shall (1) provide coverage in the amount of the Release Amount applicable to the Substitute Property if the “tie-in” or similar endorsement described above is available or, if such endorsement is not available, in an amount equal to one hundred fifty percent (150%) of the Release Amount applicable for the Substitute Property, (2) insure Lender that the relevant Security Instrument creates a valid first lien on the Substitute Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (3) contain such legally available endorsements and affirmative coverages as are contained in the Title Insurance Policies insuring the Liens of the existing Security Instrument, and (4) name Lender as the insured. Lender also shall have received copies of paid receipts showing that all costs of or premiums for such endorsements and Title Insurance Policies have been paid;
(f3) a current appraisals or other evidence satisfactory as-built land title Survey and a certificate from a professional licensed land surveyor with respect to Lessorsuch Substitute Property, certified to the Title Company and Lender, and prepared in its sole discretionaccordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys meeting the classification of an “Urban Survey” and the following additional items from the list of “Optional Survey Responsibilities and Specifications” (Table A) shall be added to each survey 2, 3, 4, 6, 8, 9, 10, 11(a) (as to utilities, surface matters only) and 13, and showing the location, dimensions and area of each parcel of the Substitute Property, including all existing buildings and improvements, utilities, parking areas and spaces, internal streets, if any, external streets, rights-of-way, as to the current Fair Market Values of well as any easements, setback violations or encroachments on such Substitute Property and identifying each item with its corresponding exception, if any, in the Leased Propertytitle policy relating thereto. Each survey shall contain the original signature and seal of the surveyor and any additional matter required by the Title Company. In addition, Borrower shall provide with respect to each Substitute Property a certificate of a professional land surveyor to the effect that the Improvements located upon such Substitute Property are not located in a flood plain area, or, if such Substitute Property is in a flood plain area, Borrower shall deliver on the Closing Date evidence of flood insurance;
(g4) a certified copy of a deed conveying to Borrower all right, title and interest in and to the Replaced Property and a letter from a title insurance company acknowledging receipt of such deed and agreeing to record such deed in the real estate records for the county in which the Replaced Property is located;
(5) insurance certificates issued by insurance companies evidencing the insurance coverage required under Section 6.1 hereof;
(6) a Phase I environmental report issued by a qualified environmental consultant at Borrower’s expense, and, if recommended by the Phase I environmental report, a Phase II environmental report, which conclude that the Substitute Property does not contain any Hazardous Substance except for nominal amounts of such substances commonly incorporated in or used in the operation of properties similar to the Substitute Property (in either case in compliance with all Environmental Laws). If any such report discloses the presence of any Hazardous Substance, such report shall include an estimate of the cost of any related remediation and Borrower shall deposit with Lender an amount equal to one hundred fifty percent (150%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (A) an update to such report indicating that there is no longer any Hazardous Substance on the Substitute Property except for nominal amounts of such substances commonly incorporated in or used in the operation of properties similar to the Substitute Property (in either case in compliance with all Environmental Laws) and (B) paid receipts indicating that the costs of all such remediation work have been paid;
(7) payments of or reimbursement for all costs and expenses incurred by Lender (including, without limitation, reasonable attorneys’ fees and disbursements) in connection with the substitution, and Borrower shall have paid all recording charges, filing fees, taxes or other expenses (including, without limitation, mortgage and intangibles taxes and documentary stamp taxes) payable in connection with the substitution. Borrower shall have paid all costs and expenses of the Rating Agencies incurred in connection with the substitution;
(8) an endorsement to the Title Insurance Policy insuring the Lien of the Security Instrument encumbering the Substitute Property insuring that the Substitute Property constitutes a separate tax lot or, if such an endorsement is not available revenue data relating in the State in which the Substitute Property is located, a letter from the title insurance company issuing such Title Insurance Policy or of an opinion of competent counsel in the State where such Substitute Property is located, stating that the Substitute Property constitutes a separate tax lot or a letter from the appropriate authority stating that the Substitute Property constitutes a separate tax lot;
(9) a Physical Conditions Report with respect to the Substitute Property stating that the Substitute Property and its use comply in all material respects with all applicable Legal Requirements (including, without limitation, zoning, subdivision and building laws) and that the Substitute Property is in good condition and repair and free of damage or waste. If compliance with any Legal Requirements are not addressed by the Physical Conditions Report, such compliance shall be confirmed by delivery to Lender of a certificate of an architect licensed in the State in which the Substitute Property is located, a letter from the municipality in which such Property is located, a certificate of a surveyor that is licensed in the State in which the Substitute Property is located (with respect to zoning and subdivision laws), an ALTA 3.1 zoning endorsement to the Title Insurance Policy delivered pursuant to clause (2) above (with respect to zoning laws) or a subdivision endorsement to the Title Insurance Policy delivered pursuant to clause (2) above (with respect to subdivision laws). If the Physical Conditions Report recommends that any repairs be made with respect to the Substitute Property, such Physical Conditions Report shall include an estimate of the cost of such recommended repairs and Borrower shall deposit with Lender an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (A) an update to such Physical Conditions Report or a letter from engineer that prepared such Physical Conditions Report indicating that the recommended repairs were completed in good manner and (B) paid receipts indicating that the costs of all such repairs have been paid;
(10) annual operating statements and occupancy statements for the Substitute Property for the period most current completed fiscal year and a current operating statement for the Replaced Property, each certified to Lender as being true and correct, and a certificate from Borrower certifying that there has been no adverse change in the financial condition of the Substitute Property since the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessor.operating statements;
Appears in 3 contracts
Sources: Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust), Loan Agreement (U-Store-It Trust)
Conditions to Substitution. On the Substitution Date, the No substitution of a Collateral Loan with a Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor Loan shall occur unless each of the followingfollowing conditions is satisfied as of the date of such substitution:
(a) an Officer's Certificate certifying that (i) the each Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located Loan is an Eligible Collateral Loan on the Substitute Property nor is any condemnation date of substitution and, subject to Section 2.02, the Administrative Agent shall have received and approved an Approval Request for the Collateral Loan the Borrower intends to purchase with the proceeds of the Advance and such approval has not expired or eminent domain proceeding pending with respect thereto; been rescinded;
(ii) all permitseach Collateral Quality Test is satisfied (or, licenses if not satisfied immediately prior to such investment, compliance with such Collateral Quality Test is maintained or improved) and certificates each Coverage Test is satisfied;
(including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreementsiii) which are necessary to permit the use sum of the Principal Balances of such Substitute Property Loans shall be equal to or greater than the sum of the Principal Balances of the Collateral Loans being substituted for;
(iv) no Default has occurred and is continuing or would result therefrom;
(v) the Servicer acting on behalf of the Borrower shall notify the Administrative Agent of any amount to be deposited into the Collection Account in connection with any such substitution and shall deliver to the Custodian and the Collateral Agent the Related Documents for any Substitute Loan in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; Facility Documents;
(vi) upon confirmation of the delivery of a Substitute Loan for each applicable Collateral Loan being substituted for (the date of such confirmation or delivery, the “Retransfer Date”), each applicable Collateral Loan being substituted for shall be removed from the Collateral and the applicable Substitute Loan(s) shall be included in the Collateral. On the Retransfer Date of a Collateral Loan, the Collateral Agent, for the benefit of the Secured Parties, shall automatically and without further action be deemed to release and transfer to the best knowledge Borrower, without recourse, representation or warranty, all the right, title and interest of Lesseethe Collateral Agent, there exists no Event for the benefit of Default the Secured Parties, in, to and under this Leasesuch Collateral Loan being substituted for. The Collateral Agent, for the benefit of the Secured Parties, shall, at the sole expense of the Borrower, execute such documents and instruments of transfer as may be prepared by the Servicer, on behalf of the Borrower, and no defense, offset or claim exists with respect take other such actions as shall reasonably be requested by the Borrower to any sums effect the release and transfer of such Collateral Loan pursuant to be paid by Lessee hereunder, and this Section 10.03; and
(vii) any exceptions to Lessor's title the Borrower shall deliver to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from Administrative Agent on the date of opening for business such substitution a certificate of a Responsible Officer certifying that each of the facility on foregoing is true and correct as of such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessordate.
Appears in 2 contracts
Sources: First Omnibus Amendment (Pennantpark Investment Corp), Revolving Credit and Security Agreement (Pennantpark Investment Corp)
Conditions to Substitution. On the Substitution Date, the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor of the followingfollowing items in form and substance reasonably satisfactory to Lessor:
(a) an Officer's Certificate representing, warranting and certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, including a permanent, unconditional certificate of occupancy and and, to the extent permitted by law, all certificates of need, licenses need and provider agreementslicenses) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' mechanic's or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XIIXI; (v) any mechanics' mechanic's or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, ; and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a special warranty deed with full warranties against claims arising under Lessee conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved in writing or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein herein, except that (i) the legal description of the land Land shall refer to the Substitute Property, (ii) the Fair Market ValueMinimum Purchase Amount, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 20.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company reasonably satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture further violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIIIXII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year Fiscal-Year end, or for the most recent three (3) years, whichever is less; and and
(h) such other certificates, documents, opinions of counsel (which may be in-house counsel), and other instruments as may be reasonably required by Lessor.
Appears in 2 contracts
Sources: Lease Agreement (Integrated Living Communities Inc), Lease Agreement (Integrated Living Communities Inc)
Conditions to Substitution. On Without limiting the Substitution Dateforegoing, as conditions precedent to the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor consummation of the followingany proposed substitution:
(a) as of the applicable Substitution Date, no Event of Default shall have occurred under the Lease (excluding any Event of Default which has been waived, in writing, by Lessor), nor any event which with the giving of notice or the passage of time or both would constitute such an Event of Default;
(b) Lessor shall have received engineering and inspection reports relating to the assisted living facility identified by Lessee in the applicable Substitution Notice (referred to herein as a "Proposed Facility"), reasonably satisfactory in all respects to Lessor;
(c) Lessee shall have delivered to Lessor (i) an MAI appraisal of the Proposed Facility (prepared by an appraiser selected by Lessee and approved by Lessor), in form and substance reasonably satisfactory to Lessor and (ii) an instrument survey of the premises upon which the Proposed Facility is located acceptable to Lessor and the title insurance company providing insurance with respect to the Proposed Facility;
(d) Lessor shall be satisfied as to compliance of Lessee, the Proposed Facility, the owner of the Proposed Facility (to the extent such owner is not Lessee as provided in subsection (l) below) and/or the proposed substitution, as the case may be, with (i) all applicable land use, zoning, subdivision and environmental laws and regulations, (ii) all applicable assisted living licensure laws and regulations and (iii) such other matters as Lessor reasonably deems relevant (including, without limitation, whether the conveyance of the property to Lessor in connection with the proposed substitution may be avoided under the Bankruptcy Code);
(e) Lessee shall have delivered to Lessor a valid and binding owner's or lessee's (as applicable) title insurance commitment issued by a title insurer reasonably acceptable to Lessor (the "Title Company"), in an amount equal to the Fair Market Value of the Proposed Facility, with such endorsements and affirmative coverages, and in such form, as Lessor may reasonably require insuring Lessor's fee title or leasehold title to the Proposed Facility, subject to no Liens except those approved or assumed by Lessor and arrangements satisfactory to Lessor shall have been made for the issuance of a title insurance policy on the Substitution Date in accordance with such title insurance commitment;
(f) Lessee shall have delivered an environmental site assessment report relating to the Proposed Facility, in form and substance reasonably acceptable to Lessor and prepared by an environmental consultant reasonably acceptable to Lessor;
(g) Lessor shall have obtained, at Lessee's cost, an opinion of Lessor's counsel, in form and substance acceptable to Lessor, confirming that (i) the substitution of the Proposed Facility for the Leased Property will qualify as an exchange solely of property of a like-kind under Section 1031 of the Code, in which, generally, except for "boot" such as cash needed to equalize exchange values or discharge indebtedness, no gain or loss is recognized to Lessor, (ii) the substitution or sale will not result in ordinary recapture income to Lessor pursuant to Code Section 1250(d)(4) or any other Code provision, (iii) the substitution or sale will result in income, if any, to Lessor of a type described in Code Section 856(c)(2) or (3) and will not result in income of the types described in Code Section 856(c)(4) or result in the tax imposed under Code Section 857(b)(6) and (iv) the substitution or sale, together with all other substitutions and sales made or requested by Lessee or any Affiliate of Lessee or of any Guarantor pursuant to any other leases with Lessor (or any of its Affiliates) or any other 128 transfers of the Leased Property or the properties leased under other such leases, during the relevant time period, will not jeopardize the qualification of Lessor as a real estate investment trust under Code Sections 856-860;
(h) Lessor shall have received opinions of Lessee's counsel as to (i) the compliance of the Proposed Facility with land use, zoning, subdivision and environmental laws and regulations, (ii) the compliance of Lessee, the owner of the Proposed Facility (to the extent such owner is not Lessee as provided in subsection (l) below), the proposed substitution and the Proposed Facility with applicable assisted living laws and regulations, (iii) the due authorization, execution and enforceability of the Substitution Documents and (iv) such other matters as are reasonably requested; in form and substance reasonably acceptable to Lessor;
(i) Lessee and each Guarantor shall have executed and delivered, or caused to be executed and delivered, such documents as are reasonably required by Lessor to effectuate the substitution (collectively, the "Substitution Documents"), including, without limitation, (i) a deed with full warranties or assignment of a leasehold estate with full warranties (as applicable) conveying to Lessor title to the Proposed Facility free and clear of all Liens, except those approved or assumed by Lessor, (ii) a facility lease (the "Substitution Lease") duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (1) the legal description of the land shall refer to the Proposed Facility, (2) the Minimum Repurchase Price of the Proposed Facility shall be an amount equal to the Minimum Repurchase Price of the Leased Property increased by any Cash Adjustment paid by Lessor, (3) the Rent under the Substitution Lease in all respects shall provide Lessor with a substantially equivalent yield at the time of the substitution (i.e., annual return on its equity in such Proposed Facility) to that received (and reasonably expected to be received thereafter) from the Leased Property, taking into account the Cash Adjustment, if any, paid by Lessor and any other relevant factors and (4) such other changes therein as may be necessary or appropriate under the circumstances shall be made; (iii) a collateral assignment of permits, licenses, approvals and contracts relating to the Proposed Facility, substantially in the form of the Permits Assignment; (iv) UCC financing statements; (v) a guaranty substantially in the form of the Guaranty of Lease Obligations shall be executed by Guarantor, (vi) an affiliated party subordination agreement, substantially in the form of the Affiliated Party Subordination Agreement, shall be executed by the Lessee, and such other Affiliates of the Lessee as are deemed necessary or appropriate by the Lessor and (vii) the Agreement Regarding Related Transactions shall be amended to reflect the substitution of the Proposed Facility. The Substitution Documents shall be based upon and contain the same terms and conditions as are set forth in Lessee Documents in effect prior to the substitution, except that such changes shall be made as may be necessary or reasonably appropriate under the circumstances to effectuate the substitution and secure the protection and priority of the property and security interests conveyed and/or granted to Lessor;
(j) without limiting any other provision contained herein, Lessee shall have delivered to Lessor such other information and materials relating to Lessee, the owner of the Proposed Facility (to the extent that such owner is not Lessee as provided in subsection (l) below) and the Proposed Facility as Lessor may reasonably request, including, without limitation, leases, receipted bills, management agreements and other Contracts, Provider Agreements, cost reports, Permits, evidence of legal and actual access to the Proposed Facility, evidence of the availability and sufficiency of utilities servicing the Proposed Facility, historical and current operating statements, detailed budgets and financial statements and Lessor shall have found the same to be satisfactory in all respects;
(k) Lessee or an Affiliate of Lessee shall be the licensed operator of the Proposed Facility as of the date of the consummation of the substitution;
(l) the Proposed Facility shall be owned or leased by Lessee or an Affiliate of Lessee; provided, however that in the event that the Proposed Facility is owned by any such Affiliate, (i) said Affiliate shall execute and deliver to Lessor such Substitution Documents as may be reasonably required by Lessor and (ii) Lessor shall be provided with such evidence as it may require to determine that the conveyance of the Proposed Facility (or a leasehold interest therein) to Lessor does not constitute a fraudulent conveyance (under applicable federal or state law);
(m) Lessee shall have delivered to Lessor an insurance certificate evidencing compliance with all of the insurance requirements set forth in the Substitution Documents;
(n) Lessee shall have delivered to Lessor an Officer's Certificate certifying as of the Substitution Date that (i) the Substitute Property Proposed Facility has been accepted by Lessee for all purposes of this the Substitution Lease and there has been no material damage to the improvements located on the Substitute Property Proposed Facility, nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates Permits (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreementsProvider Agreements) which are necessary to permit the use of the Substitute Property Proposed Facility in accordance with the provisions of this the Substitution Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations regulations, the Substitute Property Proposed Facility may be used for the purposes contemplated by Lessee Substitution Documents and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and (viiv) any exceptions to Lessor's title to the Substitute Property Proposed Facility do not materially interfere with the intended use of the Substitute Property Proposed Facility by Lessee;
(bo) Lessor shall have determined that the Proposed Facility constitutes a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;Comparable Facility, and
(cp) a lease duly executed, acknowledged Lessor shall have received all Rent due and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated payable hereunder through the Substitution Date. In the event that the equity value of the Proposed Facility (i.e., in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute PropertyProposed Facility minus the Liens to which Lessor will take the Proposed Facility subject) as of the Substitution Date is greater than the equity value of the Leased Property (i.e., and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates the Fair Market Value of insurance with respect the Leased Property minus the Liens to which Lessee will take the Leased Property subject other than those Liens which Lessee is obligated to pay or discharge pursuant to the Substitute terms of this Lease) as of the Substitution Date, subject to the limitation set forth below, Lessor shall pay an amount equal to the difference to Lessee; provided, however, that Lessor shall not be obligated to consummate such substitution if Lessor would be required to make a payment to Lessee of an amount equal to or in excess of fifteen percent (15%) of said Fair Market Value of the Leased Property fulfilling (the requirements amount of Article XIII;
(f) current appraisals cash paid by Lessor to Lessee being referred to herein as the "Cash Adjustment"). Without limiting the generality or other evidence satisfactory to Lessoreffect of the preceding sentence, in its sole discretionthe event that, as on the Substitution Date, Lessor is obligated to the current Fair Market Values of pay a Cash Adjustment to Lessee and Lessor does not have sufficient funds available, or elects not to make such Substitute Property payment in cash, Lessor shall provide Lessee with (and the Leased Property;
Lessee shall accept) a purchase money note and mortgage for a term not to exceed eighteen (g18) all available revenue data relating to the Substitute Property for the period months from the date of opening for business of Substitution Date and bearing interest, payable monthly, at the facility on such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessorrate described in Section 10.2.
Appears in 2 contracts
Sources: Lease Agreement (Emeritus Corp\wa\), Facility Lease Agreement (Emeritus Corp\wa\)
Conditions to Substitution. On the Substitution Date, the No substitution of a Collateral Loan with a Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor Loan shall occur unless each of the followingfollowing conditions is satisfied (or waived by the Administrative Agent) as of the date of such substitution, after giving effect to such substitution, all other substitutions of Collateral Loans occurring substantially concurrently and all sales or purchases of Collateral Loans previously or substantially concurrently committed to:
(a) an Officer's Certificate certifying that (i) the such Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor Loan is any condemnation or eminent domain proceeding pending with respect thereto; an Eligible Collateral Loan;
(ii) all permitseach Collateral Quality Test is satisfied or, licenses if it is not satisfied, maintained or improved and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreementsy) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; Borrowing Base Test is satisfied;
(iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction sum of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Asset Values of such Substitute Property and Loans shall be equal to or greater than the Leased Propertysum of the Asset Values of the Collateral Loans being substituted for;
(giv) no Default or Event of Default has occurred and is continuing (before or after giving effect to such substitution of Collateral Loans, all available revenue data relating other substitutions occurring substantially concurrently and all sales or purchases of Collateral Loans previously or substantially concurrently committed to), unless such Default or Event of Default will be cured upon giving effect to such transactions and the application of the proceeds thereof;
(v) the Borrower (or the Collateral Manager acting on its behalf) shall notify the Administrative Agent of any amount to be deposited into the Collection Account in connection with any such substitution and shall deliver to the Custodian the Required Loan Documents for such Substitute Property Loan;
(vi) upon confirmation of the delivery of a Substitute Loan for the period from each applicable Collateral Loan being substituted for (the date of opening such confirmation or delivery, the “Retransfer Date”), each applicable Collateral Loan being substituted for business shall be removed from the Collateral and the applicable Substitute Loan(s) shall be included in the Collateral. On the Retransfer Date of a Collateral Loan, the Collateral Agent, for the benefit of the facility Secured Parties, shall automatically and without further action be deemed to release and transfer to the Borrower, without recourse, representation or warranty, all the right, title and interest of the Collateral Agent, for the benefit of the Secured Parties in, to and under such Collateral Loan being substituted for. The Collateral Agent, for the benefit of the Secured Parties, shall, at the sole expense of the Borrower, execute such documents and instruments of transfer as may be prepared by the Collateral Manager, on behalf of the Borrower, and take such Substitute Property other actions as shall reasonably be requested by the Borrower to effect the release and transfer of such Collateral Loan pursuant to this Section 10.03; and
(vii) the Borrower shall deliver to the Administrative Agent on the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessorsubstitution a Borrowing Base Calculation Statement.
Appears in 2 contracts
Sources: Credit and Security Agreement (Apollo Debt Solutions BDC), Credit and Security Agreement (Blackstone Private Credit Fund)
Conditions to Substitution. On the Substitution Date, the Substitute Property will shall become the Leased Property hereunder hereunder, upon delivery by Lessee Tenant to Lessor Landlord of the following:
(a) an Officer's Certificate certifying that (i) the Substitute Property has been accepted by Lessee Tenant for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property thereon, nor is any condemnation Condemnation pending or eminent domain proceeding pending threatened with respect thereto; (ii) all appropriate permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations regulations, the Substitute Property may be used for the purposes contemplated by Lessee this Lease and all necessary subdivision approvals approvals, if any, have been obtained; (iv) there are no mechanics' , or materialmen's liens outstanding or threatened to the knowledge of Lessee Tenant against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee Tenant pursuant to Article XII8; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of LesseeTenant, there exists no Default or Event of Default under this LeaseDefault, and no defense, offset or claim exists with respect to any sums to be paid payable by Lessee Tenant hereunder, ; and (viivi) any exceptions to LessorLandlord's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by LesseeTenant;
(b) a deed with full warranties or assignment of a leasehold estate with full warranties (as applicable) conveying to Lessor Landlord title to the Substitute Property free and clear of any liens and encumbrances or encumbrances, except those approved or assumed by LessorLandlord;
(c) a lease an amendment duly executed, acknowledged and delivered by LesseeTenant, containing the same terms in form and conditions as are contained herein except that (i) substance satisfactory to Landlord, amending this Lease to correct the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent Land and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) make such other changes therein herein as may be necessary or appropriate under the circumstances shall be madecircumstances;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated as of the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor Landlord by a title insurance company and in the form reasonably satisfactory to Lessor. Such Landlord, which policy shall (i) insure (Ax) LessorLandlord's fee title or leasehold estate to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, Landlord and (By) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, violated; (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, ; and (iii) contain such affirmative coverage endorsements as may be Landlord shall reasonably requested by Lessorrequest;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII9;
(f) current appraisals or other evidence satisfactory to LessorLandlord, in its sole discretion, as to the then current Fair Market Values and the projected residual values of such Substitute Property and the Leased PropertyProperty as to which such substitution is being made;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility Facility on such Substitute Property to the date of LesseeTenant's most recent fiscal year end, Fiscal Year end or for the most recent three (3) years, whichever is less; and and
(h) such other certificates, documents, opinions of counsel, counsel and other instruments as may be reasonably required by LessorLandlord.
Appears in 2 contracts
Sources: Settlement Agreement (Senior Housing Properties Trust), Lease Agreement (Senior Housing Properties Trust)
Conditions to Substitution. On the Substitution Date, the No substitution of a Collateral Asset with a Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor Loan shall occur unless each of the followingfollowing conditions is satisfied (or waived by the Administrative Agent) as of the date of such substitution, after giving effect to such substitution, all other substitutions of Collateral Assets occurring substantially concurrently and all sales or purchases of Collateral Assets previously or substantially concurrently committed to:
(a) an Officer's Certificate certifying that (i) the such Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor Loan is any condemnation or eminent domain proceeding pending with respect thereto; an Eligible Collateral Asset;
(ii) all permits(x) each Collateral Quality Test is satisfied or, licenses if it is not satisfied, maintained or improved and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreementsy) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; Borrowing Base Test is satisfied;
(iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction sum of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Asset Values of such Substitute Property and Loans shall be equal to or greater than the Leased Propertysum of the Asset Values of the Collateral Assets being substituted for;
(giv) no Default or Event of Default has occurred and is continuing (before or after giving effect to such substitution of Collateral Assets, all available revenue data relating other substitutions occurring substantially concurrently and all sales or purchases of Collateral Assets previously or substantially concurrently committed to), unless such Default or Event of Default will be cured upon giving effect to such transactions and the application of the proceeds thereof;
(v) the Borrower (or the Collateral Manager acting on its behalf) shall notify the Administrative Agent of any amount to be deposited into the applicable Collection Account in connection with any such substitution and shall deliver to the Custodian the Required Loan Documents for such Substitute Property Loan;
(vi) upon confirmation of the delivery of a Substitute Loan for the period from each applicable Collateral Asset being substituted for (the date of opening such confirmation or delivery, the “Retransfer Date”), each applicable Collateral Asset being substituted for business shall be removed from the Collateral and the applicable Substitute Loan(s) shall be included in the Collateral. On the Retransfer Date of a Collateral Asset, the Collateral Agent, for the benefit of the facility Secured Parties, shall automatically and without further action be deemed to release and transfer to the Borrower, without recourse, representation or warranty, all the right, title and interest of the Collateral Agent, for the benefit of the Secured Parties in, to and under such Collateral Asset being substituted for. The Collateral Agent, for the benefit of the Secured Parties, shall, at the sole expense of the Borrower, execute such documents and instruments of transfer as may be prepared by the Collateral Manager, on behalf of the Borrower, and take such Substitute Property other actions as shall reasonably be requested by the Borrower to effect the release and transfer of such Collateral Asset pursuant to this Section 10.03; and
(vii) the Borrower shall deliver to the Administrative Agent on the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessorsubstitution a Borrowing Base Calculation Statement.
Appears in 2 contracts
Sources: Credit and Security Agreement (Diameter Credit Co), Credit and Security Agreement (Diameter Credit Co)
Conditions to Substitution. On the Substitution Date, the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor of the following, items in form and substance reasonably satisfactory to Lessor:
(a) an Officer's Certificate representing, warranting and certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, including a permanent, unconditional certificate of occupancy and and, to the extent permitted by law, all certificates of need, licenses need and provider agreementslicenses) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' mechanic's or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XIIXI; (v) any mechanics' mechanic's or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessor.in
Appears in 2 contracts
Sources: Lease Agreement (Balanced Care Corp), Lease Agreement (Balanced Care Corp)
Conditions to Substitution. On the Substitution Date, the Substitute Property will become the Leased Property hereunder upon delivery by Lessee L▇▇▇▇▇ to Lessor of the followingfollowing items in form and substance reasonably satisfactory to Lessor:
(a) an Officer's ’s Certificate certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, including a permanent, unconditional certificate of occupancy and and, to the extent permitted by law, all certificates of need, licenses need and provider agreementslicenses) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' mechanic’s or materialmen's ’s liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XIIXI; (v) any mechanics' mechanic’s or materialmen's ’s liens being contested by Lessee will be promptly paid by Lessee L▇▇▇▇▇ if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, ; and (vii) any exceptions to Lessor's L▇▇▇▇▇’s title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by LesseeL▇▇▇▇▇;
(b) a special warranty deed with full warranties against claims arising under Lessee conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved in writing or assumed by LessorL▇▇▇▇▇;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land Land shall refer to the Substitute Property, (ii) the Fair Market ValueMinimum Repurchase Price, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 20.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's ’s or lessee's ’s (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' ’ and materialmen's ’s lien coverage, issued to Lessor by a title insurance company reasonably satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's ’s fee title to the Substitute Property’, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture further violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIIIXII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility Facility on such Substitute Property to the date of Lessee's ’s most recent fiscal year Fiscal-Year end, or for the most recent three (3) years, whichever is less; and and
(h) such other certificates, documents, opinions of counsel (which may be in-house counsel), and other instruments as may be reasonably required by LessorL▇▇▇▇▇.
Appears in 2 contracts
Sources: Assignment and Assumption of Lease (Global Medical REIT Inc.), Assignment and Assumption of Lease (Global Medical REIT Inc.)
Conditions to Substitution. On the Substitution Date, the Substitute Property will shall become the Leased Property hereunder hereunder, upon delivery by Lessee Tenant to Lessor Landlord of the following:
(a) an An Officer's Certificate Certificate, and, with respect to the matters described in (ii), (iii) and (iv) below, an opinion of counsel to Tenant reasonably acceptable to Landlord, certifying that (i) the Substitute Property has been accepted by Lessee Tenant for all purposes of this the applicable Lease and there has been no material damage to the improvements located on the Substitute Property thereon, nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all appropriate permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this the applicable Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations regulations, the Substitute Property may be used for the purposes contemplated by Lessee the applicable Lease and all necessary subdivision approvals approvals, if any, have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee Tenant against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee Tenant pursuant to Article XII8 hereof; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Leaseexists, and no defense, offset or claim exists with respect to any sums to be paid payable by Lessee hereunder, Tenant under the applicable Lease; and (viivi) any exceptions to LessorLandlord's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by LesseeTenant;
(b) a A deed with full limited warranties or assignment of a leasehold estate with limited warranties (as applicable) conveying to Lessor Landlord title to the Substitute Property free and clear of any liens and encumbrances or encumbrances, except those approved or assumed by LessorLandlord;
(c) a lease an amendment duly executed, acknowledged and delivered by LesseeTenant, containing in form and substance reasonably satisfactory to Landlo▇▇, amending the same terms and conditions as are contained herein except that applicable Lease to (i) correct the legal description of the land shall refer to the Substitute PropertyLand, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessor.establish
Appears in 1 contract
Sources: Master Lease Document (Senior Housing Properties Trust)
Conditions to Substitution. On the Substitution Date, the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor of the followingfollowing items in form and substance reasonably satisfactory to Lessor:
(a) an Officer's Certificate representing, warranting and certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, including a permanent, unconditional certificate of occupancy and and, to the extent permitted by law, all certificates of need, licenses need and provider agreementslicenses) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanicsmechanic' s or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII11; (v) any mechanics' mechanic's or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, ; and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;; 30
(b) a special warranty deed with full warranties against claims arising under Lessee conveying to Lessor title tide to the Substitute Property free and clear of any liens and encumbrances except those approved in writing or assumed by Lessor;
; (c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein herein, except that (i) the legal description of the land Land shall refer to the Substitute Property, (ii) the Fair Market ValueMinimum Purchase Price, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 20.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
made ; (d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company reasonably satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture further violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
; (e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
12; (f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
; (g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year Fiscal-Year end, or for the most recent three (3) years, whichever is less; and (h) such other certificates, documents, opinions of counsel (which may be in-house counsel), and other instruments as may be reasonably required by Lessor.
Appears in 1 contract
Sources: Lease Agreement (Emeritus Corp\wa\)
Conditions to Substitution. On the Substitution Date, the Substitute Property will shall become the Leased Property hereunder hereunder, upon delivery by Lessee Tenant to Lessor Landlord of the following:
(a) an An Officer's Certificate Certificate, and, with respect to the matters described in (ii), (iii) and (iv) below, an opinion of counsel to Tenant acceptable to Landlord, certifying that (i) the Substitute Property has been accepted by Lessee Tenant for all purposes of this the applicable Lease and there has been no material damage to the improvements located on the Substitute Property thereon, nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all appropriate permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this the applicable Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations regulations, the Substitute Property may be used for the purposes contemplated by Lessee the applicable Lease and all necessary subdivision approvals approvals, if any, have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee Tenant against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee Tenant pursuant to Article XII8 hereof; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Leaseexists, and no defense, offset or of claim exists with respect to any sums to be paid payable by Lessee Tenant hereunder, ; and (viivi) any exceptions to LessorLandlord's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by LesseeTenant;
(b) a A deed with full limited warranties or assignment of a leasehold estate with limited warranties (as applicable) conveying to Lessor Landlord title to the Substitute Property free and clear of any liens and encumbrances or encumbrances, except those approved or assumed by LessorLandlord;
(c) a lease an amendment duly executed, acknowledged and delivered by LesseeTenant, containing in form and substance satisfactory to Landlord, amending the same terms and conditions as are contained herein except that applicable Lease to (i) correct the legal description of the land shall refer to the Substitute PropertyLand, (ii) establish the Fair Market Value, Adjusted Purchase Price and Minimum Rent and any Additional Charges for of the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) make such other changes therein herein as may be necessary or appropriate under the circumstances shall be madecircumstances;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated as of the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor Landlord by a title insurance company and in the form reasonably satisfactory to LessorLandlord. Such policy shall (i) insure (Ax) LessorLandlord's fee title or leasehold estate to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, Landlord and (By) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, violated; (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, ; and (iii) contain such affirmative coverage endorsements as may be Landlord shall reasonably requested by Lessorrequest;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII9;
(f) current appraisals or other evidence satisfactory to LessorLandlord, in its sole discretion, discretion as to the then current Fair Market Values and the projected residual values of such Substitute Property and the applicable Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility Facility on such Substitute Property to the date of LesseeTenant's most recent fiscal year Fiscal Year end, or for the most recent three (3) years, whichever is less;
(h) written confirmation from any guarantor of Tenant's obligations under the applicable Lease; and and
(i) such other certificates, documents, opinions of counsel, counsel and other instruments as may be reasonably required by LessorLandlord.
Appears in 1 contract
Sources: Master Lease Agreement (Senior Housing Properties Trust)
Conditions to Substitution. On the Substitution Date, the Substitute Property will shall become the Leased Property hereunder hereunder, upon delivery by Lessee Tenant to Lessor Landlord of the following:
(a) an An Officer's Certificate certifying that (i) the Substitute Property has been accepted by Lessee Tenant for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property thereon, nor is any condemnation Condemnation pending or eminent domain proceeding pending threatened with respect thereto; (ii) all appropriate permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations regulations, the Substitute Property may be used for the purposes contemplated by Lessee this Lease and all necessary subdivision approvals approvals, if any, have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee Tenant against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee Tenant pursuant to Article XII8; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of LesseeTenant, there exists no Default or Event of Default under this LeaseDefault, and no defense, offset or claim exists with respect to any sums to be paid payable by Lessee Tenant hereunder, ; and (viivi) any exceptions to LessorLandlord's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by LesseeTenant;
(b) a A deed with full warranties or assignment of a leasehold estate with full warranties (as applicable) conveying to Lessor Landlord title to the Substitute Property free and clear of any liens and encumbrances or encumbrances, except those approved or assumed by LessorLandlord;
(c) a lease an amendment duly executed, acknowledged and delivered by LesseeTenant, containing the same terms in form and conditions as are contained herein except that (i) substance satisfactory to Landlord, amending this Lease to correct the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent Land and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) make such other changes therein herein as may be necessary or appropriate under the circumstances shall be madecircumstances;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated as of the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor Landlord by a title insurance company and in the form reasonably satisfactory to Lessor. Such Landlord, which policy shall (i) insure (Ax) LessorLandlord's fee title or leasehold estate to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, Landlord and (By) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, violated; (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, ; and (iii) contain such affirmative coverage endorsements as may be Landlord shall reasonably requested by Lessorrequest;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII9;
(f) current appraisals or other evidence satisfactory to LessorLandlord, in its sole discretion, as to the then current Fair Market Values and the projected residual values of such Substitute Property and the Leased PropertyProperty as to which such substitution is being made;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility Facility on such Substitute Property to the date of LesseeTenant's most recent fiscal year Fiscal Year end, or for the most recent three (3) years, whichever is less; and and
(h) such other certificates, documents, opinions of counsel, counsel and other instruments as may be reasonably required by LessorLandlord.
Appears in 1 contract
Conditions to Substitution. On In addition to the requirements in Section 2.7(b) above, substitution of any Property pursuant to this Section 2.7 shall be subject to the satisfaction of the following, all of which shall be prepared or obtained at Borrower's expense:
(i) simultaneously with the Substitution, Borrower shall convey fee simple title to the Replaced Property to a Person other than Borrower;
(ii) Intentionally Deleted;
(iii) Intentionally Deleted;
(iv) receipt by Lender and the Rating Agencies of written notice thereof from Borrower at least thirty (30) days before the date of the proposed Substitution Date(the "SUBSTITUTION DATE"), together with (1) written evidence that the property proposed to be a Substitute Property complies with Section 2.7(b) above and (2) such other information, including financial information, as Lender or the Rating Agencies may request;
(v) Lender's receipt of written affirmation from the Rating Agencies that the ratings of the Securities immediately prior to such Substitution will not be qualified, downgraded or withdrawn as a result of such Substitution, which affirmation may be granted or withheld in the Rating Agencies' sole and absolute discretion;
(vi) delivery to Lender of an opinion of counsel opining as to the enforceability of the Substitute Security Instrument with respect to the Substitute Property will become in substantially the Leased same form and substance as the opinion of counsel concerning enforceability originally delivered at the Closing Date in connection with the Replaced Property, with reasonable allowance for variations in applicable State law, and a Nondisqualification Opinion and a Tax Opinion;
(vii) no Event of Default shall have occurred and be continuing;
(viii) the representations and warranties set forth in this Agreement, in the Security Instrument and the Loan Documents applicable to the Replaced Property hereunder upon shall be true and correct (except as to title exceptions) as to the Substitute Property on the Substitution Date in all material respects;
(ix) delivery to Lender of a copy of the organizational documents of Borrower and all amendments thereto, certified as true, complete and correct as of the date of delivery by Lessee an Officer's Certificate; a certificate from the secretary of the State or other applicable State official or officer in Borrower's State of formation certifying that it is duly formed and in good standing (with tax clearance, if applicable), if available, and certificates from the Secretary of State of the State in which the Substitute Property is located (if such certificates are issued), certifying as to Lessor Borrower's good standing as a limited liability company in such State (with tax clearance, if applicable); delivery of an Officer's Certificate, dated the Substitution Date and signed on behalf of its Secretary or Assistant Secretary, certifying the names of the officers of the general partner of the sole member of Borrower authorized to execute and deliver, in the name and on behalf of Borrower, the Security Instrument, Assignment of Leases, UCC Financing Statements, and the other Loan Documents pertaining to such Substitute Property to which Borrower is a party, together with the original (not photocopied) signatures of such officers;
(x) delivery to Lender of an Officer's Certificate certifying to the veracity of the statements in Subsections 2.7(b)(ii), 2.7(b)(iii), 2.7(b)(iv), 2.7(b)(vii), 2.7(c)(viii), and 2.7(c)(ix) hereof;
(xi) delivery to Lender of originals of the following:
(a1) an Officer's Certificate certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease Borrower shall have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lesseeto Lender a Security Instrument, containing an Assignment of Leases and two UCC Financing Statements (to the same terms extent execution and conditions as acknowledgment are contained herein except that (irequired) the legal description of the land shall refer with respect to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent together with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor letter from Borrower countersigned by a title insurance company satisfactory acknowledging receipt of such Security Instrument, Assignment of Leases and UCC-1 Financing Statements and agreeing to Lessorrecord or file, as applicable, such Security Instrument, Assignment of Leases and Rents and, with regard to the UCC-1 Financing Statements, if recordation or a system of filing is accepted or established in the applicable jurisdiction, one of the UCC-1 Financing Statements in the real estate records for the county in which the Substitute Property is located and, subject to local law, rule or custom, to file one of the UCC-1 Financing Statements in the office of the Secretary of State of the State in which Borrower has been formed, so as to effectively create upon such recording and filing valid and enforceable Liens upon the Substitute Property, of the requisite priority, in favor of Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents. Such policy The Security Instrument, Assignment of Leases and UCC-1 Financing Statements shall be the same in form and substance as the counterparts of such documents executed and delivered with respect to the related Replaced Property subject to modifications reflecting the Substitute Property as the Property that is the subject of such documents and such modifications reflecting the laws of the State in which the Substitute Property is located as shall be recommended by the counsel admitted to practice in such State and delivering the opinion of counsel as to the enforceability of such documents required pursuant to this Section. The Security Instrument encumbering the Substitute Property shall secure all amounts evidenced by the Note, provided that in the event that the jurisdiction in which the Substitute Property is located imposes a mortgage recording, intangibles or similar tax and does not permit the allocation of indebtedness for the purpose of determining the amount of such tax payable, the principal amount secured by such Security Instrument shall be equal to one hundred fifty percent (i150%) insure (A) Lessor's fee title of the amount of the Loan allocated to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e2) certificates Lender shall have received (A) any "tie-in" or similar endorsement to each Title Insurance Policy insuring the Lien of insurance the Security Instrument as of the date of the substitution available with respect to the Title Insurance Policy insuring the Lien of the Security Instrument with respect to the Substitute Property fulfilling and (B) a Title Insurance Policy (or a marked, signed and redated commitment to issue such Title Insurance Policy) insuring the requirements Lien of Article XIIIthe Security Instrument encumbering the Substitute Property, issued by the title company that issued the Title Insurance Policies insuring the Lien of the Security Instrument and dated as of the date of the substitution, with reinsurance and direct access agreements that replace such agreements issued in connection with the Title Insurance Policy insuring the Lien of the Security Instrument encumbering the Replaced Property. The Title Insurance Policy issued with respect to the Substitute Property shall (1) provide coverage in the amount of the Release Amount applicable to the Substitute Property if the "tie-in" or similar endorsement described above is available or, if such endorsement is not available, in an amount equal to one hundred fifty percent (150%) of the Release Amount applicable for the Substitute Property, (2) insure Lender that the relevant Security Instrument creates a valid first lien on the Substitute Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (3) contain such legally available endorsements and affirmative coverages as are contained in the Title Insurance Policies insuring the Liens of the existing Security Instrument, and (4) name Lender as the insured. Lender also shall have received copies of paid receipts showing that all costs of or premiums for such endorsements and Title Insurance Policies have been paid;
(f3) a current appraisals or other evidence satisfactory as-built land title Survey and a certificate from a professional licensed land surveyor with respect to Lessorsuch Substitute Property, certified to the Title Company and Lender, and prepared in its sole discretionaccordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys meeting the classification of an "Urban Survey" and the following additional items from the list of "Optional Survey Responsibilities and Specifications" (Table A) shall be added to each survey 2, 3, 4, 6, 8, 9, 10, 11(a) (as to utilities, surface matters only) and 13, and showing the location, dimensions and area of each parcel of the Substitute Property, including all existing buildings and improvements, utilities, parking areas and spaces, internal streets, if any, external streets, rights-of-way, as to the current Fair Market Values of well as any easements, setback violations or encroachments on such Substitute Property and identifying each item with its corresponding exception, if any, in the Leased Propertytitle policy relating thereto. Each survey shall contain the original signature and seal of the surveyor and any additional matter required by the Title Company. In addition, Borrower shall provide with respect to each Substitute Property a certificate of a professional land surveyor to the effect that the Improvements located upon such Substitute Property are not located in a flood plain area, or, if such Substitute Property is in a flood plain area, Borrower shall deliver on the Closing Date evidence of flood insurance;
(g4) a certified copy of a deed conveying to Borrower all available revenue data relating right, title and interest in and to the Substitute Replaced Property and a letter from a title insurance company acknowledging receipt of such deed and agreeing to record such deed in the real estate records for the period from county in which the date of opening for business of Replaced Property is located;
(5) insurance certificates issued by insurance companies evidencing the facility on such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably insurance coverage required by Lessor.under Section 6.1 hereof;
Appears in 1 contract
Sources: Loan Agreement (U-Store-It Trust)
Conditions to Substitution. On the Substitution Date, the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor of the followingfollowing items in form and substance reasonably satisfactory to Lessor:
(a) an Officer's Certificate representing, warranting and certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, including a permanent, unconditional certificate of occupancy and and, to the extent permitted by law, all certificates of need, licenses need and provider agreementslicenses) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' mechanic's or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessor.to
Appears in 1 contract
Sources: Lease Agreement (Emeritus Corp\wa\)
Conditions to Substitution. On the Substitution Date, the Substitute -------------------------- Property will become the Leased Property hereunder upon delivery by Lessee to Lessor of the followingfollowing items in form and substance reasonably satisfactory to Lessor:
(a) an Officer's Certificate representing, warranting and certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, including a permanent, unconditional certificate of occupancy and and, to the extent permitted by law, all certificates of need, licenses need and provider agreementslicenses) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' mechanic's or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII11; (v) any mechanics' mechanic's or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, ; and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a special warranty deed with full warranties against claims arising under Lessee conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved in writing or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein herein, except that (i) the legal description of the land Land shall refer to the Substitute Property, (ii) the Fair Market ValueMinimum Purchase Price, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 20.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, if available in the State in which the Substitute Property is located issued to Lessor by a title insurance company reasonably satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture further violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by LessorLessor if available in the State in which the Substitute Property is located;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII12;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year Fiscal-Year end, or for the most recent three (3) yearsyears or the period of Lessee's ownership or operation of the Substitute Property, whichever is less; and and
(h) such other certificates, documents, opinions of counsel (which may be in-house counsel), and other instruments as may be reasonably required by Lessor.
Appears in 1 contract
Sources: Lease Agreement (Emeritus Corp\wa\)
Conditions to Substitution. On the Substitution Date, the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor of the following:
(a) an Officer's Certificate certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, ; and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;.
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market ValueMinimum Repurchase Price, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes charges therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and and
(h) such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessor.
Appears in 1 contract
Conditions to Substitution. On Without limiting the foregoing, as conditions precedent to the consummation of any proposed substitution: (a) as of the applicable Substitution Date, no Event of Default shall have occurred under the Substitute Property will become Lease (excluding any Event of Default which has been waived, in writing, by Lessor), nor any event which with the Leased Property hereunder upon delivery giving of notice or the passage of time or both would constitute such an Event of Default; (b) Lessor shall have received engineering and inspection reports relating to the assisted living facility identified by Lessee in the applicable Substitution Notice (referred to herein as a "Proposed Facility"), reasonably satisfactory in all respects to Lessor; (c) Lessee shall have delivered to Lessor of the following:
(a) an Officer's Certificate certifying that (i) an MAI appraisal of the Substitute Property has been accepted Proposed Facility (prepared by an appraiser selected by Lessee for all purposes and approved by Lessor), in form and substance reasonably satisfactory to Lessor and (ii) an instrument survey of this Lease the premises upon which the Proposed Facility is located acceptable to Lessor and there has been no material damage the title insurance company providing insurance with respect to the improvements located on Proposed Facility; (d) Lessor shall be satisfied as to compliance of Lessee, the Substitute Property nor Proposed Facility, the owner of the Proposed Facility (to the extent such owner is any condemnation or eminent domain proceeding pending not Lessee as provided in subsection (I) below) and/or the proposed substitution, as the case may be, with respect thereto; (i) all applicable land use, zoning, subdivision and environmental laws and regulations, (ii) all permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules assisted living licensure laws and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein matters as Lessor reasonably deems relevant (including, without limitation, whether the conveyance of the property to Lessor in connection with the proposed substitution may be necessary or appropriate avoided under the circumstances shall be madeBankruptcy Code);
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessor.
Appears in 1 contract
Conditions to Substitution. On the Substitution Date, the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor of the followingfollowing items in form and substance reasonably satisfactory to Lessor:
(a) an Officer's Certificate certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, including a permanent, unconditional certificate of occupancy and and, to the extent permitted by law, all certificates of need, licenses need and provider agreementslicenses) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' mechanic's or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XIIXI; (v) any mechanics' mechanic's or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, ; and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a special warranty deed with full warranties against claims arising under Lessee conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved in writing or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, Lessee containing the same terms and conditions as are contained herein except that (i) the legal description of the land Land shall refer to the Substitute Property, (ii) the Fair Market ValueMinimum Repurchase Price, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 20.1, and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company reasonably satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture further violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIIIXII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility Facility on such Substitute Property to the date of Lessee's most recent fiscal year Fiscal-Year end, or for the most recent three (3) years, whichever is less; and and
(h) such other certificates, documents, opinions of counsel, counsel and other instruments as may be reasonably required by Lessor.
Appears in 1 contract
Conditions to Substitution. On the Substitution Date, the Substitute -------------------------- Property will become the Leased Property hereunder upon delivery by Lessee to Lessor of the followingfollowing items in form and substance reasonably satisfactory to Lessor:
(a) an Officer's Certificate representing, warranting and certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, including a permanent, unconditional certificate of occupancy and and, to the extent permitted by law, all certificates of need, licenses need and provider agreementslicenses) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' mechanic's or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XIIII; (v) any mechanics' mechanic's or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, ; and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a special warranty deed with full warranties against claims arising under Lessee conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved in writing or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein herein, except that (i) the legal description of the land Land shall refer to the Substitute Property, (ii) the Fair Market ValueMinimum Purchase Price, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 20.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, if available in the State in which the Substitute Property is located issued to Lessor by a title insurance company reasonably satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture further violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by LessorLessor if available in the State in which the Substitute Property is located;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII12;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year Fiscal-Year end, or for the most recent three (3) yearsyears or the period of Lessee's ownership or operation of the Substitute Property, whichever is less; and and
(h) such other certificates, documents, opinions of counsel (which may be in-house counsel), and other instruments as may be reasonably required by Lessor.
Appears in 1 contract
Sources: Lease Agreement (Emeritus Corp\wa\)
Conditions to Substitution. On the Substitution Date, the Substitute ---------------------------- Property will become a part of the Leased Property hereunder upon delivery by Lessee to Lessor of the following:
following items in form and substance reasonably satisfactory to Lessor: (ayy) an Officer's Certificate representing, warranting and certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, including a permanent, unconditional certificate of occupancy and and, to the extent permitted by law, all certificates of need, licenses need and provider agreementslicenses) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' mechanic's or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII11; (v) any mechanics' mechanic's or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, ; and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
; (bzz) a special warranty deed with full warranties against claims arising under Lessee conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved in writing or assumed by Lessor;
; (caaa) a lease an amendment to this Lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that setting forth (i) the legal description of the land shall refer Land related to the Substitute Property, (ii) the Fair Market Value, Project Amount and the Minimum Rent and any Additional Charges for the allocated to such Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
circumstances; (dbbb) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, if available in the State in which the Substitute Property is located issued to Lessor by a title insurance company reasonably satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture further violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
Lessor if available in the State in which the Substitute Property is located; (eccc) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
12; (fddd) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
; (geee) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year Fiscal-Year end, or for the most recent three (3) yearsyears or the period of Lessee's ownership or operation of the Substitute Property, whichever is less; and (fff) such other certificates, documents, opinions of counsel (which may be in-house counsel), and other instruments or information as may be reasonably required by Lessor, including, but not limited to ALTA/ACSM land surveys, engineering studies and environmental assessments.
Appears in 1 contract
Sources: Lease Agreement (Emeritus Corp\wa\)
Conditions to Substitution. On the Substitution Date, the Substitute -------------------------- Property will become the Leased Property hereunder upon delivery by Lessee to Lessor of the followingfollowing items in form and substance reasonably satisfactory to Lessor:
(a) an Officer's Certificate representing, warranting and certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, including a permanent, unconditional certificate of occupancy and and, to the extent permitted by law, all certificates of need, licenses need and provider agreementslicenses) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' mechanic's or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII11; (v) any mechanics' mechanic's or materialmen's liens being contested by Lessee will be he promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, ; and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a special warranty deed with full warranties against claims arising under Lessee conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved in writing or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein herein, except that (i) the legal description of the land Land shall refer to the Substitute Property, (ii) the Fair Market ValueMinimum Purchase Price, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 20.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, if available in the State in which the Substitute Property is located issued to Lessor by a title insurance company reasonably satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture further violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by LessorLessor if available in the State in which the Substitute Property is located;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII12;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year Fiscal-Year end, or for the most recent three (3) yearsyears or the period of Lessee's ownership or operation of the Substitute Property, whichever is less; and and
(h) such other certificates, documents, opinions of counsel (which may be in-house counsel), and other instruments as may be reasonably required by Lessor.
Appears in 1 contract
Sources: Lease Agreement (Emeritus Corp\wa\)
Conditions to Substitution. On the Substitution Date, the Substitute Property will become the Leased Property hereunder upon delivery by Lessee L▇▇▇▇▇ to Lessor of the followingfollowing items in form and substance reasonably satisfactory to Lessor:
(a) an Officer's Certificate certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been is no material damage to the improvements located on the Substitute Property as of the Substitution Date nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, including a permanent, unconditional certificate of occupancy and and, to the extent permitted by law, all certificates of need, licenses need and provider agreementslicenses) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' mechanic's or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII11 ; (v) any mechanics' mechanic's or materialmen's liens being contested by Lessee L▇▇▇▇▇ will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee L▇▇▇▇▇ hereunder, ; and (vii) any exceptions to LessorL▇▇▇▇▇'s title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by LesseeL▇▇▇▇▇;
(b) a special warranty deed with full warranties against claims arising under Lessee conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved in writing or assumed by LessorL▇▇▇▇▇;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land Land shall refer to the Substitute Property, (ii) the Fair Market ValueMinimum Purchase Price, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 20.1, (iii) the term of the new lease shall mirror the remaining Term hereunder (including L▇▇▇▇▇'s right to any remaining extension options) and (iiiiv) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company reasonably satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture further violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII12;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility Facility on such Substitute Property to the date of Lessee's most recent fiscal year Fiscal-Year end, or for the most recent three (3) years, whichever is less; and and
(h) such other certificates, documents, opinions of counsel (which may be in-house counsel), and other instruments as may be reasonably required by LessorL▇▇▇▇▇.
Appears in 1 contract
Sources: Assignment and Assumption of Lease (Global Medical REIT Inc.)
Conditions to Substitution. On Without limiting the foregoing, as conditions precedent to the consummation of any proposed substitution: - (i) as of the applicable Substitution Date, the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor no Loan Default shall have occurred under any of the following:
(a) an Officer's Certificate certifying that (i) Loan Documents, nor shall any event have occurred and be continuing which with the Substitute Property has been accepted by Lessee for all purposes giving of this Lease and there has been no material damage to notice or the improvements located on the Substitute Property nor is any condemnation passage of time or eminent domain proceeding pending with respect theretoboth would constitute such a Loan Default; (ii) the Lender shall have received, engineering and inspection reports relating to the healthcare facility or facilities identified by the Borrower in the applicable Substitution Notice (referred to herein as a "Proposed Property"), reasonably satisfactory in all permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary respects to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effectLender; (iii) under applicable zoning the Borrower shall have delivered to the Lender (1) an MAI appraisal of the Proposed Property (prepared by an appraiser selected by the Borrower and use lawsapproved by the Lender), ordinances, rules in form and regulations substance reasonably satisfactory to the Substitute Lender and (2) an instrument survey of the premises upon which the Proposed Property may be used for is located acceptable to the purposes contemplated by Lessee Lender and all necessary subdivision approvals have been obtainedthe Title Company; (iv) there are no mechanics' or materialmen's liens outstanding or threatened the Lender shall be satisfied as to compliance of the Borrower, the Proposed Property, the owner of the Proposed Property (to the knowledge of Lessee against extent such owner is not the Substitute Property arising out of or Borrower as provided in subsection (xi) below) and/or the proposed substitution, as the case may be, with (1) all applicable land use, zoning, subdivision and environmental laws and regulations, (2) all applicable licensure laws and regulations and (3) such other matters as the Lender reasonably deems relevant (including, without limitation, whether the security interests granted to the Lender in connection with the construction of proposed substitution may be avoided under the improvements thereon, other than those being contested by Lessee pursuant to Article XIIBankruptcy Code); (v) any mechanics' or materialmenthe Borrower shall have delivered to the Lender a mortgagee's liens being contested title insurance commitment issued by Lessee will be promptly paid by Lessee if a title insurer reasonably acceptable to the Lender (the "Title Company"), in an amount equal to the Loan Amount then outstanding, with such contest is resolved in favor endorsements as the Lender may reasonably require insuring the first priority of the mechanic Lender's valid mortgage lien on the Borrower's fee title or materialmanleasehold title to the Proposed Property and arrangements satisfactory 77 to the Lender shall have been made for the issuance of a title insurance policy in accordance with such title insurance commitment; (vi) ). the Borrower shall have delivered an environmental site assessment report relating to the best knowledge of LesseeProposed Property, there exists no Event of Default under this Lease, in form and no defense, offset or claim exists with respect substance reasonably acceptable to any sums the Lender and prepared by an environmental consultant reasonably acceptable to be paid by Lessee hereunder, and the Lender; (vii) any exceptions the Lender shall have received opinions of the Borrower's counsel as to Lessor's title (1) the compliance of the Proposed Property with land use, zoning, subdivision and environmental laws and regulations, (2) the compliance of the Borrower, the owner of the Proposed Property (to the Substitute extent such owner is not the Borrower as provided in subsection (xi) below), the proposed substitution and the Proposed Property do not materially interfere with applicable health care laws and regulations and various applicable licensure laws and regulations, (3) the intended use due authorization, execution and enforceability of the Substitute Property by Lessee;
Substitution Documents and (b4) a deed with full warranties conveying to Lessor title such other matters as are reasonably requested, in form and substance reasonably acceptable to the Substitute Lender; (viii) the Borrower and Guarantor shall have executed and delivered, or caused to be executed and delivered, such documents as are reasonably required by the Lender to effectuate the substitution (collectively, the "Substitution Documents"), including, without limitation either lease documentation such would be used for a Lease Conversion (if the Proposed Project is to be acquired by Lender or its Affiliates and leased to Borrower) or if the Personal Property free is owned by the Borrower, amendments of the Loan Documents, a mortgage and clear security agreement, assignment of any liens leases and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executedrents and collateral assignment of permits and contracts relating to the Proposed Property, acknowledged U.C.C. financing statements and delivered by Lessee, containing ratifications of the Loan Documents. The Substitution Documents shall be based upon and contain the same terms and conditions as are contained herein set forth in the Loan Documents in effect prior to the substitution, except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property such changes shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein made as may be necessary or reasonably appropriate under the circumstances shall be made;
(d) counterparts to effectuate the substitution and secure the protection and priority of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title security interests granted to the Substitute PropertyLender; (ix) without limiting any other provision contained herein, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property Borrower shall have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal delivered to the Fair Market Value of the Substitute Property, Lender such other information and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data materials relating to the Substitute Borrower, the owner of the Proposed Property for (to the period from extent such owner is not the Borrower as provided in subsection (xi) below) and the Proposed Property as the Lender may reasonably request, including, without limitation, leases, receipted bills, management agreements, provider agreements, cost reports, health care surveys, Permits, evidence of legal and actual access to the Proposed Property, evidence of the availability and sufficiency of utilities servicing the Proposed Property, historical and current operating statements, detailed budgets and fmancial statements and the Lender shall have found the same to be satisfactory in all respects; (x) as of the date of opening for business the consummation of the facility on such Substitute Property to substitution, the date Borrower or an Affiliate of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is lessBorrower shall be the licensed operator of the Proposed Property; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessor.78
Appears in 1 contract
Sources: Loan Agreement (Emeritus Corp\wa\)
Conditions to Substitution. On Without limiting the Substitution Dateforegoing, as conditions precedent to the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor consummation of the followingany proposed substitution:
(a) as of the applicable Substitution Date, no Lease Default shall have occurred (excluding any Lease Default which has been waived, in writing, by Lessor), nor any event which with the giving of notice and/or the passage of time would constitute such a default;
(b) Lessor shall have received engineering and inspection reports relating to the medical office building identified by Lessee in the applicable Substitution Notice (referred to herein as a "Proposed Facility"), reasonably satisfactory in all respects to Lessor;
(c) Lessee shall have delivered to Lessor (i) an MAI appraisal of the Proposed Facility (prepared by an appraiser selected by Lessee and approved by Lessor), in form and substance reasonably satisfactory to Lessor and (ii) an 125 instrument survey of the premises upon which the Proposed Facility is located acceptable to Lessor and the Title Company;
(d) Lessor shall be satisfied as to compliance of Lessee, the Proposed Facility, the owner of the Proposed Facility (to the extent such owner is not Lessee as provided in subsection (l) below) and/or the proposed substitution, as the case may be, with (i) all applicable land use, zoning, subdivision and environmental laws and regulations, (ii) all applicable health-care and/or adult care, assisted living or other similar senior housing licensure laws and regulations and (III) such other matters as Lessor reasonably deems relevant (including, without limitation, whether the conveyance of the property to Lessor in connection with the proposed substitution may be avoided under the Bankruptcy Code);
(e) Lessee shall have delivered to Lessor a valid and binding owner's or lessee's (as applicable) title insurance commitment issued by a title insurer reasonably acceptable to Lessor (the "Title Company"), in an amount equal to the Fair Market Value of the Proposed Facility, with such endorsements and affirmative coverages, and in such form, as Lessor may reasonably require insuring Lessor's fee title or leasehold title to the Proposed Facility, subject to no Liens except those approved or assumed by Lessor and arrangements satisfactory to Lessor shall have been made for the issuance of a title insurance policy on the Substitution Date in accordance with such title insurance commitment;
(f) Lessee shall have delivered an environmental site assessment report relating to the Proposed Facility, in form and substance reasonably acceptable to Lessor and prepared by an environmental consultant reasonably acceptable to Lessor;
(g) Lessor shall have obtained, at Lessee's cost, an opinion of Lessor's counsel, in form and substance acceptable to Lessor, confirming that (i) the substitution of the Proposed Facility for the Leased Property will qualify as an exchange solely of property of a like-kind under Section 1031 of the Code, in which, generally, except for "boot" such as cash needed to equalize exchange values or discharge indebtedness, no gain or loss is recognized to Lessor, (ii) the substitution or sale will not result in ordinary recapture income to Lessor pursuant to Code Section 1250(d)(4) or any other Code provision, (iii) the substitution or sale will result in income, if any, to Lessor of a type described in Code Section 856(c)(2) or (3) and will not result in income of the types described in Code Section 856(c)(4) or result in the tax imposed under Code Section 857(b)(6) and (iv) the substitution or sale, together with all other substitutions and sales made or requested by Lessee or any Affiliate of Lessee or of any Guarantor pursuant to any other leases with Lessor (or any of its Affiliates) or any other transfers of the Leased Property or the properties leased under other such leases, during the relevant time period, will not jeopardize the qualification of Lessor as a real estate investment trust under Code Sections 856-860;
(h) Lessor shall have received opinions of Lessee's counsel as to (i) the compliance of the Proposed Facility with land use, zoning, subdivision and environmental laws and regulations, (ii) the compliance of Lessee, the owner of the Proposed Facility (to the extent such owner is not Lessee as provided in subsection (l) below), the proposed substitution and the Proposed Facility with applicable health care, adult care, assisted living and/or other similar senior housing laws and regulations, (iii) the due authorization, execution and enforceability of the Substitution Documents and (iv) such other matters as are reasonably requested; in form and substance reasonably acceptable to Lessor;
(i) Lessee and the Guarantor shall have executed and delivered, or caused to be executed and delivered, such documents as are reasonably required by Lessor to effectuate the substitution (collectively, the "Substitution Documents"), including, without limitation, (i) a deed with full warranties or assignment of a leasehold estate with full warranties (as applicable) conveying to Lessor title to the Proposed Facility free and clear of all Liens, except those approved or assumed by Lessor, (ii) a facility lease (the "Substitution Lease") duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (1) the legal description of the land shall refer to the Proposed Facility, (2) the Meditrust Investment in the Proposed Facility shall be an amount equal to the Meditrust Investment in the Leased Property increased by any Cash Adjustment paid by Lessor, (3) the Rent under the Substitution Lease in all respects shall provide Lessor with a substantially equivalent yield at the time of the substitution (i.e., annual return on its equity in such Proposed Facility) to that received (and reasonably expected to be received thereafter) from the Leased Property, taking into account the Cash Adjustment, if any, paid by Lessor and any other relevant factors and (4) such other changes therein as may be necessary or appropriate under the circumstances shall be made; (iii) a collateral assignment of permits, licenses, approvals and contracts relating to the Proposed Facility, substantially in the form of the Lessee Permits Assignment; (iv) UCC financing statements and (v) an affiliated party subordination agreement, substantially in the form of Affiliated Party Subordination Agreement, shall be executed by the parties to the Affiliated Party Subordination Agreement and such other Persons as are deemed necessary or appropriate by the Lessor. The Substitution Documents shall be based upon and contain the same terms and conditions as are set forth in Lessee Documents in effect prior to the substitution, except that such changes shall be made as may be necessary or reasonably appropriate under the circumstances to effectuate the substitution and secure the protection and priority of the property and security interests conveyed and/or granted to Lessor;
(j) without limiting any other provision contained herein, Lessee shall have delivered to Lessor such other information and materials relating to Lessee, the owner of the Proposed Facility (to the extent that such owner is not Lessee as provided in subsection (l) below) and the Proposed Facility as Lessor may reasonably request, including, without limitation, leases, receipted bills, management agreements and other Contracts, Provider Agreements, cost reports, 127 Permits, evidence of legal and actual access to the Proposed Facility, evidence of the availability and sufficiency of utilities servicing the Proposed Facility, historical and current operating statements, detailed budgets and financial statements and Lessor shall have found the same to be satisfactory in all respects;
(k) without limiting Lessee's obligations to pay the Substitution Closing Costs in accordance with the provisions of Section 25.4, Lessee shall also pay to Lessor a fee equal to one percent (1%) of the Meditrust Investment;
(l) the Proposed Facility shall be owned or leased by Lessee or an Affiliate of Lessee that is acceptable to Lessor; provided, however, that in the event that the Proposed Facility is owned by any such Affiliate, (i) said Affiliate shall execute and deliver to Lessor such Substitution Documents as may be reasonably required by Lessor and (ii) Lessor shall be provided with such evidence as it may require to determine that the conveyance of the Proposed Facility (or a leasehold interest therein) to Lessor does not constitute a fraudulent conveyance (under applicable federal or state law);
(m) Lessee shall have delivered to Lessor an insurance certificate evidencing compliance with all of the insurance requirements set forth in the Substitution Documents;
(n) Lessee shall have delivered to Lessor an Officer's Certificate certifying as of the Substitution Date that (i) the Substitute Property Proposed Facility has been accepted by Lessee for all purposes of this the Substitution Lease and there has been no material damage to the improvements located on the Substitute Property Proposed Facility, nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates Permits (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreementsoccupancy) which are necessary to permit the use of the Substitute Property Proposed Facility in accordance with the provisions of this the Substitution Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations regulations, the Substitute Property Proposed Facility may be used for the purposes contemplated by Lessee Substitution Documents and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Lease Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and (viiv) any exceptions to Lessor's title to the Substitute Property Proposed Facility do not materially interfere with the intended use of the Substitute Property Proposed Facility by Lessee;
(bo) Lessor shall have determined that the Proposed Facility constitutes a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is lessComparable Facility; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessor.and
Appears in 1 contract
Conditions to Substitution. On In addition to the Substitution Daterequirements in Section 2.7(b) above, substitution of any Property pursuant to this Section 2.7 shall be subject to the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor satisfaction of the following, all of which shall be prepared or obtained at Borrower's expense:
(a) an Officer's Certificate certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance simultaneously with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use lawsSubstitution, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and (vii) any exceptions to Lessor's Borrower shall convey fee simple title to the Substitute Replaced Property do not materially interfere with the intended use of the Substitute Property by Lesseeto a Person other than Borrower;
(b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by LessorIntentionally Deleted;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be madeIntentionally Deleted;
(d) counterparts receipt by Lender and the Rating Agencies of written notice thereof from Borrower at least thirty (30) days before the date of the proposed Substitution (the "SUBSTITUTION DATE"), together with (1) written evidence that the property proposed to be a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (icomplies with Section 2.7(b) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, above and (B2) that any restrictions affecting such other information, including financial information, as Lender or the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as Rating Agencies may be reasonably requested by Lessorrequest;
(e) certificates Lender's receipt of insurance written affirmation from the Rating Agencies that the ratings of the Securities immediately prior to such Substitution will not be qualified, downgraded or withdrawn as a result of such Substitution, which affirmation may be granted or withheld in the Rating Agencies' sole and absolute discretion;
(f) delivery to Lender of an opinion of counsel opining as to the enforceability of the Substitute Security Instrument with respect to the Substitute Property fulfilling in substantially the requirements same form and substance as the opinion of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessorcounsel concerning enforceability originally delivered at the Closing Date in connection with the Replaced Property, with reasonable allowance for variations in its sole discretionapplicable State law, as to the current Fair Market Values of such Substitute Property and the Leased Propertya Nondisqualification Opinion and a Tax Opinion;
(g) all available revenue data relating no Event of Default shall have occurred and be continuing;
(h) the representations and warranties set forth in this Agreement, in the Security Instrument and the Loan Documents applicable to the Replaced Property shall be true and correct (except as to title exceptions) as to the Substitute Property for on the period from Substitution Date in all material respects;
(i) delivery to Lender of a copy of the organizational documents of Borrower and all amendments thereto, certified as true, complete and correct as of the date of opening for business delivery by an Officer's Certificate; a certificate from the secretary of the facility State or other applicable State official or officer in Borrower's State of formation certifying that it is duly formed and in good standing (with tax clearance, if applicable), if available, and certificates from the Secretary of State of the State in which the Substitute Property is located (if such certificates are issued), certifying as to Borrower's good standing as a limited liability company in such State (with tax clearance, if applicable); delivery of an Officer's Certificate, dated the Substitution Date and signed on behalf of its Secretary or Assistant Secretary, certifying the names of the officers of the general partner of the sole member of Borrower authorized to execute and deliver, in the name and on behalf of Borrower, the Security Instrument, Assignment of Leases, UCC Financing Statements, and the other Loan Documents pertaining to such Substitute Property to which Borrower is a party, together with the date original (not photocopied) signatures of Lesseesuch officers;
(j) delivery to Lender of an Officer's most recent fiscal year endCertificate certifying to the veracity of the statements in Subsections 2.7(b)(ii), or for the most recent three (3) years2.7(b)(iii), whichever is less; and such other certificates2.7(b)(iv), documents2.7(b)(vii), opinions of counsel2.7(c)(viii), and other instruments as may be reasonably required by Lessor.2.7
Appears in 1 contract
Sources: Loan Agreement (U-Store-It Trust)
Conditions to Substitution. On the Substitution Date, the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor of the followingfollowing items in form and substance reasonably satisfactory to Lessor:
(a) an Officer's Certificate representing, warranting and certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, including a permanent, unconditional certificate of occupancy and and, to the extent permitted by law, all certificates of need, licenses need and provider agreementslicenses) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' mechanic's or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII11; (v) any mechanics' mechanic's or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, ; and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a special warranty deed with full warranties against claims arising under Lessee conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved in writing or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein herein, except that (i) the legal description of the land Land shall refer to the Substitute Property, (ii) the Fair Market ValueMinimum Purchase Price, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 20.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company reasonably satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture further violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII12;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year Fiscal-Year end, or for the most recent three (3) years, whichever is less; and and
(h) such other certificates, documents, opinions of counsel (which may be in-house counsel), and other instruments as may be reasonably required by Lessor.
Appears in 1 contract
Conditions to Substitution. On In addition to the requirements in Section 2.7(b) above, substitution of any Property pursuant to this Section 2.7 shall be subject to the satisfaction of the following, all of which shall be prepared or obtained at Borrower's expense:
(i) simultaneously with the Substitution, Borrower shall convey fee simple title to the Replaced Property to a Person other than Borrower;
(ii) Intentionally Deleted;
(iii) Intentionally Deleted;
(iv) receipt by Lender and the Rating Agencies of written notice thereof from Borrower at least thirty (30) days before the date of the proposed Substitution Date(the "SUBSTITUTION DATE"), together with (1) written evidence that the property proposed to be a Substitute Property complies with Section 2.7(b) above and (2) such other information, including financial information, as Lender or the Rating Agencies may request;
(v) Lender's receipt of written affirmation from the Rating Agencies that the ratings of the Securities immediately prior to such Substitution will not be qualified, downgraded or withdrawn as a result of such Substitution, which affirmation may be granted or withheld in the Rating Agencies' sole and absolute discretion;
(vi) delivery to Lender of an opinion of counsel opining as to the enforceability of the Substitute Security Instrument with respect to the Substitute Property will become in substantially the Leased same form and substance as the opinion of counsel concerning enforceability originally delivered at the Closing Date in connection with the Replaced Property, with reasonable allowance for variations in applicable State law, and a Nondisqualification Opinion and a Tax Opinion;
(vii) no Event of Default shall have occurred and be continuing;
(viii) the representations and warranties set forth in this Agreement, in the Security Instrument and the Loan Documents applicable to the Replaced Property hereunder upon shall be true and correct (except as to title exceptions) as to the Substitute Property on the Substitution Date in all material respects;
(ix) delivery to Lender of a copy of the organizational documents of Borrower and all amendments thereto, certified as true, complete and correct as of the date of delivery by Lessee an Officer's Certificate; a certificate from the secretary of the State or other applicable State official or officer in Borrower's State of formation certifying that it is duly formed and in good standing (with tax clearance, if applicable), if available, and certificates from the Secretary of State of the State in which the Substitute Property is located (if such certificates are issued), certifying as to Lessor Borrower's good standing as a limited liability company in such State (with tax clearance, if applicable); delivery of an Officer's Certificate, dated the Substitution Date and signed on behalf of its Secretary or Assistant Secretary, certifying the names of the officers of the general partner of the sole member of Borrower authorized to execute and deliver, in the name and on behalf of Borrower, the Security Instrument, Assignment of Leases, UCC Financing Statements, and the other Loan Documents pertaining to such Substitute Property to which Borrower is a party, together with the original (not photocopied) signatures of such officers;
(x) delivery to Lender of an Officer's Certificate certifying to the veracity of the statements in Subsections 2.7(b)(ii), 2.7(b)(iii), 2.7(b)(iv), 2.7(b)(vii), 2.7(c)(viii), and 2.7(c)(ix) hereof;
(xi) delivery to Lender of originals of the following:
(a1) an Officer's Certificate certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease Borrower shall have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lesseeto Lender a Security Instrument, containing an Assignment of Leases and two UCC Financing Statements (to the same terms extent execution and conditions as acknowledgment are contained herein except that (irequired) the legal description of the land shall refer with respect to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property shall be consistent together with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor letter from Borrower countersigned by a title insurance company satisfactory acknowledging receipt of such Security Instrument, Assignment of Leases and UCC-1 Financing Statements and agreeing to Lessorrecord or file, as applicable, such Security Instrument, Assignment of Leases and Rents and, with regard to the UCC-1 Financing Statements, if recordation or a system of filing is accepted or established in the applicable jurisdiction, one of the UCC-1 Financing Statements in the real estate records for the county in which the Substitute Property is located and, subject to local law, rule or custom, to file one of the UCC-1 Financing Statements in the office of the Secretary of State of the State in which Borrower has been formed, so as to effectively create upon such recording and filing valid and enforceable Liens upon the Substitute Property, of the requisite priority, in favor of Lender (or such other trustee as may be desired under local law), subject only to the Permitted Encumbrances and such other Liens as are permitted pursuant to the Loan Documents. Such policy The Security Instrument, Assignment of Leases and UCC-1 Financing Statements shall be the same in form and substance as the counterparts of such documents executed and delivered with respect to the related Replaced Property subject to modifications reflecting the Substitute Property as the Property that is the subject of such documents and such modifications reflecting the laws of the State in which the Substitute Property is located as shall be recommended by the counsel admitted to practice in such State and delivering the opinion of counsel as to the enforceability of such documents required pursuant to this Section. The Security Instrument encumbering the Substitute Property shall secure all amounts evidenced by the Note, provided that in the event that the jurisdiction in which the Substitute Property is located imposes a mortgage recording, intangibles or similar tax and does not permit the allocation of indebtedness for the purpose of determining the amount of such tax payable, the principal amount secured by such Security Instrument shall be equal to one hundred fifty percent (i150%) insure (A) Lessor's fee title of the amount of the Loan allocated to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e2) certificates Lender shall have received (A) any "tie-in" or similar endorsement to each Title Insurance Policy insuring the Lien of insurance the Security Instrument as of the date of the substitution available with respect to the Title Insurance Policy insuring the Lien of the Security Instrument with respect to the Substitute Property fulfilling and (B) a Title Insurance Policy (or a marked, signed and redated commitment to issue such Title Insurance Policy) insuring the requirements Lien of Article XIIIthe Security Instrument encumbering the Substitute Property, issued by the title company that issued the Title Insurance Policies insuring the Lien of the Security Instrument and dated as of the date of the substitution, with reinsurance and direct access agreements that replace such agreements issued in connection with the Title Insurance Policy insuring the Lien of the Security Instrument encumbering the Replaced Property. The Title Insurance Policy issued with respect to the Substitute Property shall (1) provide coverage in the amount of the Release Amount applicable to the Substitute Property if the "tie-in" or similar endorsement described above is available or, if such endorsement is not available, in an amount equal to one hundred fifty percent (150%) of the Release Amount applicable for the Substitute Property, (2) insure Lender that the relevant Security Instrument creates a valid first lien on the Substitute Property encumbered thereby, free and clear of all exceptions from coverage other than Permitted Encumbrances and standard exceptions and exclusions from coverage (as modified by the terms of any endorsements), (3) contain such legally available endorsements and affirmative coverages as are contained in the Title Insurance Policies insuring the Liens of the existing Security Instrument, and (4) name Lender as the insured. Lender also shall have received copies of paid receipts showing that all costs of or premiums for such endorsements and Title Insurance Policies have been paid;
(f3) a current appraisals or other evidence satisfactory as-built land title Survey and a certificate from a professional licensed land surveyor with respect to Lessorsuch Substitute Property, certified to the Title Company and Lender, and prepared in its sole discretionaccordance with the 1999 Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys meeting the classification of an "Urban Survey" and the following additional items from the list of "Optional Survey Responsibilities and Specifications" (Table A) shall be added to each survey 2, 3, 4, 6, 8, 9, 10, 11(a) (as to utilities, surface matters only) and 13, and showing the location, dimensions and area of each parcel of the Substitute Property, including all existing buildings and improvements, utilities, parking areas and spaces, internal streets, if any, external streets, rights-of-way, as to the current Fair Market Values of well as any easements, setback violations or encroachments on such Substitute Property and identifying each item with its corresponding exception, if any, in the Leased Propertytitle policy relating thereto. Each survey shall contain the original signature and seal of the surveyor and any additional matter required by the Title Company. In addition, Borrower shall provide with respect to each Substitute Property a certificate of a professional land surveyor to the effect that the Improvements located upon such Substitute Property are not located in a flood plain area, or, if such Substitute Property is in a flood plain area, Borrower shall deliver on the Closing Date evidence of flood insurance;
(g4) a certified copy of a deed conveying to Borrower all right, title and interest in and to the Replaced Property and a letter from a title insurance company acknowledging receipt of such deed and agreeing to record such deed in the real estate records for the county in which the Replaced Property is located;
(5) insurance certificates issued by insurance companies evidencing the insurance coverage required under Section 6.1 hereof;
(6) a Phase I environmental report issued by a qualified environmental consultant at Borrower's expense, and, if recommended by the Phase I environmental report, a Phase II environmental report, which conclude that the Substitute Property does not contain any Hazardous Substance except for nominal amounts of such substances commonly incorporated in or used in the operation of properties similar to the Substitute Property (in either case in compliance with all Environmental Laws). If any such report discloses the presence of any Hazardous Substance, such report shall include an estimate of the cost of any related remediation and Borrower shall deposit with Lender an amount equal to one hundred fifty percent (150%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (A) an update to such report indicating that there is no longer any Hazardous Substance on the Substitute Property except for nominal amounts of such substances commonly incorporated in or used in the operation of properties similar to the Substitute Property (in either case in compliance with all Environmental Laws) and (B) paid receipts indicating that the costs of all such remediation work have been paid;
(7) payments of or reimbursement for all costs and expenses incurred by Lender (including, without limitation, reasonable attorneys' fees and disbursements) in connection with the substitution, and Borrower shall have paid all recording charges, filing fees, taxes or other expenses (including, without limitation, mortgage and intangibles taxes and documentary stamp taxes) payable in connection with the substitution. Borrower shall have paid all costs and expenses of the Rating Agencies incurred in connection with the substitution;
(8) an endorsement to the Title Insurance Policy insuring the Lien of the Security Instrument encumbering the Substitute Property insuring that the Substitute Property constitutes a separate tax lot or, if such an endorsement is not available revenue data relating in the State in which the Substitute Property is located, a letter from the title insurance company issuing such Title Insurance Policy or of an opinion of competent counsel in the State where such Substitute Property is located, stating that the Substitute Property constitutes a separate tax lot or a letter from the appropriate authority stating that the Substitute Property constitutes a separate tax lot;
(9) a Physical Conditions Report with respect to the Substitute Property stating that the Substitute Property and its use comply in all material respects with all applicable Legal Requirements (including, without limitation, zoning, subdivision and building laws) and that the Substitute Property is in good condition and repair and free of damage or waste. If compliance with any Legal Requirements are not addressed by the Physical Conditions Report, such compliance shall be confirmed by delivery to Lender of a certificate of an architect licensed in the State in which the Substitute Property is located, a letter from the municipality in which such Property is located, a certificate of a surveyor that is licensed in the State in which the Substitute Property is located (with respect to zoning and subdivision laws), an ALTA 3.1 zoning endorsement to the Title Insurance Policy delivered pursuant to clause (2) above (with respect to zoning laws) or a subdivision endorsement to the Title Insurance Policy delivered pursuant to clause (2) above (with respect to subdivision laws). If the Physical Conditions Report recommends that any repairs be made with respect to the Substitute Property, such Physical Conditions Report shall include an estimate of the cost of such recommended repairs and Borrower shall deposit with Lender an amount equal to one hundred twenty-five percent (125%) of such estimated cost, which deposit shall constitute additional security for the Loan and shall be released to Borrower upon the delivery to Lender of (A) an update to such Physical Conditions Report or a letter from engineer that prepared such Physical Conditions Report indicating that the recommended repairs were completed in good manner and (B) paid receipts indicating that the costs of all such repairs have been paid;
(10) annual operating statements and occupancy statements for the Substitute Property for the period most current completed fiscal year and a current operating statement for the Replaced Property, each certified to Lender as being true and correct, and a certificate from Borrower certifying that there has been no adverse change in the financial condition of the Substitute Property since the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessor.operating statements;
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Sources: Loan Agreement (U-Store-It Trust)
Conditions to Substitution. On the Substitution Date, the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor of the followingfollowing items in form and substance reasonably satisfactory to Lessor:
(a) an Officer's Certificate certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, including a permanent, unconditional certificate of occupancy and and, to the extent permitted by law, all certificates of need, licenses need and provider agreementslicenses) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' mechanic's or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XIIXI; (v) any mechanics' mechanic's or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, ; and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a special warranty deed with full warranties against claims arising under Lessee conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved in writing or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, Lessee containing the same terms and conditions as are contained herein except that (i) the legal description of the land Land shall refer to the Substitute Property, (ii) the Fair Market ValueMinimum Repurchase Price, Rent and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 2O.1, and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company reasonably satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture further violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIIIXII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility Facility on such Substitute Property to the date of Lessee's most recent fiscal year Fiscal-Year end, or for the most recent three (3) years, whichever is less; and and
(h) such other certificates, documents, opinions of counsel, counsel and other instruments as may be reasonably required by Lessor.
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Conditions to Substitution. On the Substitution Date, the Substitute Property will become the Leased Property hereunder upon delivery by Lessee to Lessor of the following:
(a) an Officer's Certificate certifying that (i) the Substitute Property has been accepted by Lessee for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property nor is any condemnation or eminent domain proceeding pending with respect thereto; (ii) all permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations the Substitute Property may be used for the purposes contemplated by Lessee and all necessary subdivision approvals have been obtained; (iv) there are no mechanics' or materialmen's liens outstanding or threatened to the knowledge of Lessee against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee pursuant to Article XII; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of Lessee, there exists no Event of Default under this Lease, and no defense, offset or claim exists with respect to any sums to be paid by Lessee hereunder, and (vii) any exceptions to Lessor's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by Lessee;
(b) a deed with full warranties conveying to Lessor title to the Substitute Property free and clear of any liens and encumbrances except those approved or assumed by Lessor;
(c) a lease duly executed, acknowledged and delivered by Lessee, containing the same terms and conditions as are contained herein except that (i) the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent and any Additional Charges for the Substitute Property 39 shall be consistent with the requirements of Section 21.1 and (iii) such other changes therein as may be necessary or appropriate under the circumstances shall be made;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated the Substitution Date, in current form and including mechanics' and materialmen's lien coverage, issued to Lessor by a title insurance company satisfactory to Lessor. Such policy shall (i) insure (A) Lessor's fee title to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, and (B) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, and (iii) contain such endorsements as may be reasonably requested by Lessor;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII;
(f) current appraisals or other evidence satisfactory to Lessor, in its sole discretion, as to the current Fair Market Values of such Substitute Property and the Leased Property;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility on such Substitute Property to the date of Lessee's most recent fiscal year end, or for the most recent three (3) years, whichever is less; and such other certificates, documents, opinions of counsel, and other instruments as may be reasonably required by Lessor.
Appears in 1 contract
Conditions to Substitution. On the Substitution Date, the Substitute Property will shall become the Leased Property hereunder hereunder, upon delivery by Lessee Tenant to Lessor Landlord of the following:
(a) an Officer's Certificate certifying that (i) the Substitute Property has been accepted by Lessee Tenant for all purposes of this Lease and there has been no material damage to the improvements located on the Substitute Property thereon, nor is any condemnation Condemnation pending or eminent domain proceeding pending threatened with respect thereto; (ii) all appropriate permits, licenses and certificates (including, but not limited to, a permanent, unconditional certificate of occupancy and all certificates of need, licenses and provider agreements) which are necessary to permit the use of the Substitute Property in accordance with the provisions of this Lease have been obtained and are in full force and effect; (iii) under applicable zoning and use laws, ordinances, rules and regulations regulations, the Substitute Property may be used for the purposes contemplated by Lessee this Lease and all necessary subdivision approvals approvals, if any, have been obtained; (iv) there are no mechanics' , or materialmen's liens outstanding or threatened to the knowledge of Lessee Tenant against the Substitute Property arising out of or in connection with the construction of the improvements thereon, other than those being contested by Lessee Tenant pursuant to Article XII8; (v) any mechanics' or materialmen's liens being contested by Lessee will be promptly paid by Lessee if such contest is resolved in favor of the mechanic or materialman; (vi) to the best knowledge of LesseeTenant, there exists no Default or Event of Default under this LeaseDefault, and no defense, offset or claim exists with respect to any sums to be paid payable by Lessee Tenant hereunder, ; and (viivi) any exceptions to LessorLandlord's title to the Substitute Property do not materially interfere with the intended use of the Substitute Property by LesseeTenant;
(b) a deed with full warranties or assignment of a leasehold estate with full warranties (as applicable) conveying to Lessor Landlord title to the Substitute Property free and clear of any liens and encumbrances or encumbrances, except those approved or assumed by LessorLandlord;
(c) a lease an amendment duly executed, acknowledged and delivered by LesseeTenant, containing the same terms in form and conditions as are contained herein except that (i) substance satisfactory to Landlord, amending this Lease to correct the legal description of the land shall refer to the Substitute Property, (ii) the Fair Market Value, Rent Land and any Additional Charges for the Substitute Property shall be consistent with the requirements of Section 21.1 and (iii) make such other changes therein herein as may be necessary or appropriate under the circumstances shall be madecircumstances;
(d) counterparts of a standard owner's or lessee's (as applicable) policy of title insurance covering the Substitute Property (or a valid, binding, unconditional commitment therefor), dated as of the Substitution Date, in current form and including mechanics' , and materialmen's lien coverage, issued to Lessor Landlord by a title insurance company and in the form reasonably satisfactory to Lessor. Such Landlord, which policy shall (i) insure (Ax) LessorLandlord's fee title or leasehold estate to the Substitute Property, subject to no liens or encumbrances except those approved or assumed by Lessor, Landlord and (By) that any restrictions affecting the Substitute Property have not been violated and that a fixture violation thereof will not result in a forfeiture or reversion of title, violated; (ii) be in an amount at least equal to the Fair Market Value of the Substitute Property, ; and (iii) contain such affirmative coverage endorsements as may be Landlord shall reasonably requested by Lessorrequest;
(e) certificates of insurance with respect to the Substitute Property fulfilling the requirements of Article XIII9;
(f) current appraisals or other evidence satisfactory to LessorLandlord, in its sole discretion, as to the then current Fair Market Values and the projected residual values of such Substitute Property and the Leased PropertyProperty as to which such substitution is being made;
(g) all available revenue data relating to the Substitute Property for the period from the date of opening for business of the facility Facility on such Substitute Property to the date of LesseeTenant's most recent fiscal year Fiscal Year end, or for the most recent three (3) years, whichever is less; and and
(h) such other certificates, documents, opinions of counsel, counsel and other instruments as may be reasonably required by LessorLandlord.
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