Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages. Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties with a Substitute Property or a portfolio of Substitute Properties provided that, in the case of a proposed substitution, all of the following conditions are satisfied: (i) each substitute Eligible Property is either a detached single-family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit), but excluding housing cooperatives and manufactured housing; (ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substituted; (iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted at the time of substitution; (iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date after giving effect to the Substitution; (v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease); (vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the Closing Date; (vii) simultaneously with the Substitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Property (or portfolio of Replaced Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of Borrower’s right, title and interest in such Replaced Property (or portfolio of Replaced Properties) being substituted; (viii) Borrower shall deliver on or prior to the Substitution Date evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5; (ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property; (x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substituted) is located, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”); (xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and otherwise in form and substance reasonably satisfactory to Lender; (xii) Lender shall have received a Title Insurance Policy for each Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens; (xiii) each Substitute Property shall be located in an MSA that contains at least one Property described on the Properties Schedule as of the Closing Date; (xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement); (xv) the BPO Value of the Replaced Properties, together with the BPO Value of all other Replaced Properties since the date hereof, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date; (xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability; (xvii) simultaneously with the substitution of a Replaced Property or Replaced Properties, Lender shall release the Replaced Property or Replaced Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Property or Replaced Properties encumbers other Property(ies) in addition to the Replaced Property or Replaced Properties, such release shall be a partial release that relates only to the Replaced Property or Replaced Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Property or Replaced Properties are located which contains standard provisions protecting the rights of Lender; (xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments; (xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and (xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
Appears in 4 contracts
Sources: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages. Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either a detached single-family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit), but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Affected Property or Replaced Affected Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) being substituted and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) being substituted shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of Borrower’s right, title and interest in such Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Affected Property which was previously a Substitute Property, the date such Replaced Affected Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Affected Property or Replaced Affected Properties being substituted) is located, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced an Affected Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Affected Properties, together with the BPO Value of all other Replaced Affected Properties since the date hereof, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Affected Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced an Affected Property or Replaced Affected Properties, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;; and
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Affected Property or Replaced Affected Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
Appears in 4 contracts
Sources: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages. Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is shall be a either a detached single-family residential real property or a condominium or townhome (so long as condominium units and townhomes condominiums constitute no more than two percent (2%) % of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-single family unit)) or a detached single family residential real property, but excluding townhomes, other condominium units, housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substitutedany Affected Property;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for the Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) and based on such Broker Price Opinion(s), the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced the Affected Property (or portfolio of Replaced Properties) Affected Properties being substituted);
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substitutedAffected Property) is located, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substitutedan Affected Property) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Affected Properties, together with the BPO Value of all other Replaced Affected Properties since the date hereof, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Affected Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Propertiessubstitution, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Affected Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;; and
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Affected Property or Replaced Affected Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each the Substitute Property shall be comprised of one or more separate legal parcels on a stand-stand alone basis.
Appears in 3 contracts
Sources: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages. Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either a detached single-family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit), but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Affected Property or Replaced Affected Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) being substituted and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) being substituted shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of Borrower’s right, title and interest in such Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Affected Property which was previously a Substitute Property, the date such Replaced Affected Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Affected Property or Replaced Affected Properties being substituted) is located, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced an Affected Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Affected Properties, together with the BPO Value of all other Replaced Affected Properties since the date hereof, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Affected Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced an Affected Property or Replaced Affected Properties, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;; and
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Affected Property or Replaced Affected Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
Appears in 2 contracts
Sources: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit)property, but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Affected Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the there is an Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease)Property;
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5V;
(ix) Borrower shall deliver to Lender the Property File deed, Title Insurance Owner’s Policy and the Lease with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Affected Property or Replaced Affected Properties being substituted) is located, such Mortgage and Collateral Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Collateral Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced an Affected Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value aggregate Allocated Loan Amounts of the Replaced PropertiesDisqualified Properties being substituted, together with the BPO Value aggregate Allocated Loan Amounts of all other Replaced Disqualified Properties that have been substituted with Substitute Properties since the date hereofClosing Date, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing DateInitial Principal Balance;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Affected Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;; and
(xvii) simultaneously Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Affected Property (or portfolio of Affected Properties) being substituted from applicable Mortgage Documents) and, in addition, the fee specified on Schedule VI as being assessed by Servicer to effect releases or assignments. Any such deposit in the Eligibility Reserve Subaccount or any such substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.2(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no substitution under this Agreement will be permitted unless (1) either (aa) immediately after such substitution the ratio of the unpaid principal balance of the Loan to the value of the remaining Properties (as determined by Lender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, if any) is equal to or less than 125% or (bb) the ratio of the unpaid principal balance of the Loan to the value of the Properties (including the Substitute Property or Substitute Properties) will not increase as a result of the substitution of the Substitute Property or Substitute Properties for the Affected Property or Affected Properties, or (2) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the substitution of the Substitute Property or Substitute Properties for the Affected Property or Affected Properties. Simultaneously with the substitution of a Replaced Property or Replaced PropertiesAffected Property, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, provided that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
Appears in 2 contracts
Sources: Loan Agreement (Colony Starwood Homes), Loan Agreement (Colony Starwood Homes)
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Yield Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”); provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit)property, but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Affected Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Affected Properties) being substituted and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Affected Properties) being substituted shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the there is an Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease)Property;
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File deed, Title Insurance Owner’s Policy and the Lease with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Affected Property or Replaced Affected Properties being substituted) is located, such Mortgage and Collateral Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Collateral Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced an Affected Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value aggregate Allocated Loan Amounts of the Replaced PropertiesDisqualified Properties being substituted, together with the BPO Value aggregate Allocated Loan Amounts of all other Replaced Disqualified Properties that have been substituted with Substitute Properties since the date hereofClosing Date, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing DateInitial Principal Balance;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Affected Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;; and
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Properties, Lender shall release the Replaced Property or Replaced Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Property or Replaced Properties encumbers other Property(ies) in addition to the Replaced Property or Replaced Properties, such release shall be a partial release that relates only to the Replaced Property or Replaced Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Property or Replaced Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on . Any such deposit in the Substitution Date Eligibility Reserve Subaccount or any such substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.2(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no substitution under this Agreement will be permitted unless (1) either (aa) immediately after such substitution the Borrower will deposit into ratio of the Tax Account such amount, unpaid principal balance of the Loan to the value of the remaining Properties (as reasonably determined by LenderLender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, that when aggregated with Tax Funds in if any) is equal to or less than 125% or (bb) the Tax Account and assuming subsequent monthly fundings ratio of the Tax Account on each Monthly Payment Date unpaid principal balance of one-twelfth the Loan to the value of the Properties (1/12including the Substitute Property or Substitute Properties) will not increase as a result of projected annual the substitution of the Substitute Property Taxesor Substitute Properties for the Affected Property or Affected Properties, will be sufficient to pay all Property Taxes prior to their respective due dates, or (2) if Lender receives an Acceptable Blanket Policy is opinion of counsel that the Securitization will not in effect, the Borrower will deposit into the Insurance Account such amount, fail to maintain its status as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings a REMIC Trust as a result of the Insurance Account on each Monthly Payment Date substitution of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA or Substitute Properties for the Affected Property or Affected Properties. Simultaneously with the substitution of a Affected Property, Lender shall release the Affected Property or Affected Properties from the applicable Mortgage Documents and related Lien, provided that Borrower will deposit into the HOA Account such amounthas delivered to Lender a draft release (and, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient event the Mortgage and the Collateral Assignment of Leases and Rents applicable to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Affected Property or Replaced Affected Properties shall constitute separate legal parcels from encumbers other Property(ies) in addition to the property remaining encumbered by MortgagesAffected Property or Affected Properties, and each Substitute Property such release shall be comprised a partial release that relates only to the Affected Property or Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Affected Property or Affected Properties are located which contains standard provisions protecting the rights of one or more separate legal parcels on a stand-alone basisLender.
Appears in 2 contracts
Sources: Loan Agreement (American Homes 4 Rent), Loan Agreement (American Homes 4 Rent)
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages. Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit)property, but excluding townhomes, condominium units, housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substitutedany Affected Property;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for the Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) and based on such Broker Price Opinion(s), the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced the Affected Property (or portfolio of Replaced Properties) Affected Properties being substituted);
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Affected Property which was previously a Substitute Property, the date such Replaced Affected Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substitutedAffected Property) is located, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substitutedan Affected Property) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Affected Properties, together with the BPO Value of all other Replaced Affected Properties since the date hereof, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Affected Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Propertiessubstitution, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Affected Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;; and
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Affected Property or Replaced Affected Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each the Substitute Property shall be comprised of one or more separate legal parcels on a stand-stand alone basis.
Appears in 2 contracts
Sources: Loan Agreement (Invitation Homes Inc.), Loan Agreement (Invitation Homes Inc.)
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, (i) if the breach or failure that resulted in such Property becoming a Disqualified Property relates solely to such Disqualified Property, such breach or failure shall be deemed cured and shall not result in a Default or Event of Default under this Agreement or any other Loan Document, and (ii) Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, ; provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”); and upon such deposit or substitution, if the breach or failure that resulted in such Property becoming a Disqualified Property relates solely to such Disqualified Property, such breach or failure shall be deemed to be cured and shall not result in a Default or Event of Default under this Agreement or any other Loan Document; provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-single family unit), but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Affected Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the applicable Affected Property or Affected Properties and the applicable Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) Properties and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the there is an Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease)Property;
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of Borrower’s right, title and interest in such Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted; provided that the Borrower may contribute the Affected Property (or portfolio of Affected Properties) to Borrower TRS prior to the transfer thereof to a third party;
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5V;
(ix) Borrower shall deliver to Lender the Property File deed, Title Insurance Owner’s Policy and the Lease with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Affected Property or Replaced Affected Properties being substituted) is located, such Mortgage and Collateral Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Collateral Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced an Affected Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value aggregate Allocated Loan Amounts of the Replaced PropertiesDisqualified Properties being substituted, together with the BPO Value aggregate Allocated Loan Amounts of all other Replaced Disqualified Properties that have been substituted with Substitute Properties since the date hereofClosing Date, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing DateInitial Principal Balance;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Affected Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;; and
(xvii) simultaneously Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the substitution (including, without limitation, reasonable out-of-pocket costs and expenses incurred by Lender in connection with the release of the Affected Property (or portfolio of Affected Properties) being substituted from applicable Mortgage Documents) and, in addition, the fee specified on Schedule VI as being assessed by Servicer to effect releases or assignments. Any such deposit in the Eligibility Reserve Subaccount or any such substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.2(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no substitution under this Agreement will be permitted unless (1) either (aa) immediately after such substitution the ratio of the unpaid principal balance of the Loan to the value of the remaining Properties (as determined by Lender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, if any) is equal to or less than one hundred twenty-five percent (125%) or (bb) the ratio of the unpaid principal balance of the Loan to the value of the Properties (including the Substitute Property or Substitute Properties) will not increase as a result of the substitution of the Substitute Property or Substitute Properties for the Affected Property or Affected Properties, or (2) Lender receives an opinion of counsel that a Securitization will not fail to maintain its status as a REMIC Trust as a result of the substitution of the Substitute Property or Substitute Properties for the Affected Property or Affected Properties. Simultaneously with the substitution of a Replaced Property or Replaced PropertiesAffected Property, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, provided that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
Appears in 2 contracts
Sources: Loan Agreement (Altisource Residential Corp), Loan Agreement (Altisource Residential Corp)
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Yield Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, ; provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”); provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit)property, but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Affected Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the applicable Affected Property or Affected Properties and the applicable Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) Properties and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the there is an Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease)Property;
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File deed, Title Insurance Owner’s Policy and the Lease with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Affected Property or Replaced Affected Properties being substituted) is located, such Mortgage and Collateral Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Collateral Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced an Affected Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value aggregate Allocated Loan Amounts of the Replaced PropertiesDisqualified Properties being substituted, together with the BPO Value aggregate Allocated Loan Amounts of all other Replaced Disqualified Properties that have been substituted with Substitute Properties since the date hereofClosing Date, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing DateInitial Principal Balance;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Affected Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;; and
(xvii) simultaneously Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Affected Property (or portfolio of Affected Properties) being substituted from applicable Mortgage Documents) and, in addition, the fee specified on Schedule VI as being assessed by Servicer to effect releases or assignments. Any such deposit in the Eligibility Reserve Subaccount or any such substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.2(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no substitution under this Agreement will be permitted unless (1) either (aa) immediately after such substitution the ratio of the unpaid principal balance of the Loan to the value of the remaining Properties (as determined by Lender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, if any) is equal to or less than one hundred twenty-five percent (125%) or (bb) the ratio of the unpaid principal balance of the Loan to the value of the Properties (including the Substitute Property or Substitute Properties) will not increase as a result of the substitution of the Substitute Property or Substitute Properties for the Affected Property or Affected Properties, or (2) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the substitution of the Substitute Property or Substitute Properties for the Affected Property or Affected Properties. Simultaneously with the substitution of a Replaced Property or Replaced PropertiesAffected Property, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, provided that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
Appears in 1 contract
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After Simultaneous with the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable out-of-pocket attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages. Notwithstanding the foregoing, in lieu of such prepayment, Borrower may may, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Substitute Property is either a detached single-family residential real property and not a two-to-four family residential real property, townhome, housing cooperative, manufactured housing unit or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit), but excluding housing cooperatives and manufactured housingcondominium;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substitutedany Affected Property;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for the Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) and based on such Broker Price Opinion(s), the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted at immediately prior to the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) and the Underwritten Net Cash Flow attributable to the Substitute Property (or Substitute Properties, if a portfolio of Affected Properties are being substituted) based on reasonable allocations by Borrower shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) and the Underwritten Net Cash Flow attributable to the Affected Property (or portfolio of Affected Properties being substituted substituted) based on reasonable allocations by Borrower, in each case, measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) and the Underwritten Net Cash Flow attributable to the Affected Property (or portfolio of Affected Properties being substituted substituted) based on reasonable allocations by Borrower, in each case, measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted to a Person other than Borrower or Borrower, a Loan Party or any Person owned directly or indirectly to by Borrower or a Loan Party (provided that, prior to any such conveyance, the Affected Property may initially be contributed to a Borrower TRS so long as the Properties in a Borrower TRS shall not exceed five percent (5%) of the total Properties of the Loan Parties at any time and the Borrower TRS shall commence marketing such Release Property within sixty (60) calendar days of transfer) and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced the Affected Property (or portfolio of Replaced Properties) Affected Properties being substituted);
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substitutedAffected Property) is located, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substitutedan Affected Property) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Affected Properties, together with the BPO Value of all other Replaced Affected Properties since the date hereof, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Affected Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Propertiessubstitution, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Affected Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the fee specified on Schedule IX as being assessed by Lender and/or its Servicer, or with respect to any replacement Servicer, the current reasonable and customary fee being assessed by Lender and/or its Servicer such replacement Servicer, to effect releases or assignments;; and
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Affected Property or Replaced Affected Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each the Substitute Property shall be comprised of one or more separate legal parcels on a stand-stand alone basis.
Appears in 1 contract
Sources: Loan Agreement (American Residential Properties, Inc.)
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, (i) if the breach or failure that resulted in such Property becoming a Disqualified Property relates solely to such Disqualified Property, such breach or failure shall be deemed cured and shall not result in a Default or Event of Default under this Agreement or any other Loan Document, and (ii) Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, ; provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”); and upon such deposit or substitution, if the breach or failure that resulted in such Property becoming a Disqualified Property relates solely to such Disqualified Property, such breach or failure shall be deemed to be cured and shall not result in a Default or Event of Default under this Agreement or any other Loan Document; provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-single family unit), but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Affected Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the applicable Affected Property or Affected Properties and the applicable Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) Properties and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the there is an Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease)Property;
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of Borrower’s right, title and interest in such Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted; provided that the Borrower may contribute the Affected Property (or portfolio of Affected Properties) to Borrower TRS prior to the transfer thereof to a third party;
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5V;
(ix) Borrower shall deliver to Lender the Property File deed, Title Insurance Owner’s Policy and the Lease with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Affected Property or Replaced Affected Properties being substituted) is located, such Mortgage and Collateral Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Collateral Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced an Affected Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value aggregate Allocated Loan Amounts of the Replaced PropertiesDisqualified Properties being substituted, together with the BPO Value aggregate Allocated Loan Amounts of all other Replaced Disqualified Properties that have been substituted with Substitute Properties since the date hereofClosing Date, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing DateOutstanding Principal Balance;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Affected Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;; and
(xvii) simultaneously Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the substitution (including, without limitation, reasonable out-of-pocket costs and expenses incurred by Lender in connection with the release of the Affected Property (or portfolio of Affected Properties) being substituted from applicable Mortgage Documents) and, in addition, the fee specified on Schedule VI as being assessed by Servicer to effect releases or assignments. Any such deposit in the Eligibility Reserve Subaccount or any such substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.2(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no substitution under this Agreement will be permitted unless (1) either (aa) immediately after such substitution the ratio of the Outstanding Principal Balance to the value of the remaining Properties (as determined by Lender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, if any) is equal to or less than one hundred twenty-five percent (125%) or (bb) the ratio of the Outstanding Principal Balance to the value of the Properties (including the Substitute Property or Substitute Properties) will not increase as a result of the substitution of the Substitute Property or Substitute Properties for the Affected Property or Affected Properties, or (2) Lender receives an opinion of counsel that a Securitization will not fail to maintain its status as a REMIC Trust as a result of the substitution of the Substitute Property or Substitute Properties for the Affected Property or Affected Properties. Simultaneously with the substitution of a Replaced Property or Replaced PropertiesAffected Property, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, provided that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
Appears in 1 contract
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit)property, but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substitutedany Affected Property;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the each Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) Property, and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) Properties shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months as long as the remaining term of the Lease for the Affected Property (without giving effect to any extension option in such leaseLease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced the Affected Property (or portfolio of Replaced Properties) Affected Properties being substituted);
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File deed, Title Insurance Owner’s Policy and the Lease with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substitutedAffected Property) is located, such Mortgage and Collateral Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Collateral Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is Properties are located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substitutedan Affected Property) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Affected Properties, together with the BPO Value of all other Replaced Affected Properties since the date hereofClosing Date, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Affected Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Propertiessubstitution, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;; and
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Affected Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on . Any such deposit in the Substitution Date Eligibility Reserve Subaccount or any such substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.2(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no substitution will be permitted unless (1) either (aa) immediately after such substitution the Borrower will deposit into ratio of the Tax Account such amount, unpaid principal balance of the Loan to the value of the remaining Properties (as reasonably determined by LenderLender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, that when aggregated with Tax Funds in if any) is equal to or less than 125% or (bb) the Tax Account and assuming subsequent monthly fundings ratio of the Tax Account on each Monthly Payment Date unpaid principal balance of one-twelfth the Loan to the value of the Properties (1/12including the Substitute Property or Substitute Properties) will not increase as a result of projected annual the substitution of the Substitute Property Taxesor Substitute Properties for the Affected Property or Affected Properties, will be sufficient to pay all Property Taxes prior to their respective due dates, or (2) if Lender receives an Acceptable Blanket Policy is opinion of counsel that the Securitization will not in effect, the Borrower will deposit into the Insurance Account such amount, fail to maintain its status as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings a REMIC Trust as a result of the Insurance Account on each Monthly Payment Date substitution of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, or Substitute Properties for the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Affected Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basisAffected Properties.
Appears in 1 contract
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit)property, but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substitutedany Affected Property;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the each Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) Property, and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) Properties shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term at the time of substitution of at least six (6) months (without giving effect to any extension option in such leaseLease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced the Affected Property (or portfolio of Replaced Properties) Affected Properties being substituted);
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File deed, Title Insurance Owner’s Policy and the Lease with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substitutedAffected Property) is located, such Mortgage and Collateral Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Collateral Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substitutedan Affected Property) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Affected Properties, together with the BPO Value of all other Replaced Affected Properties since the date hereofClosing Date, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Affected Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Propertiessubstitution, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;; and
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Affected Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on . Any such deposit in the Substitution Date Eligibility Reserve Subaccount or any such substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.2(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no substitution will be permitted unless (1) either (aa) immediately after such substitution the Borrower will deposit into ratio of the Tax Account such amount, unpaid principal balance of the Loan to the value of the remaining Properties (as reasonably determined by LenderLender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, that when aggregated with Tax Funds in if any) is equal to or less than 125% or (bb) the Tax Account and assuming subsequent monthly fundings ratio of the Tax Account on each Monthly Payment Date unpaid principal balance of one-twelfth the Loan to the value of the Properties (1/12including the Substitute Property or Substitute Properties) will not increase as a result of projected annual the substitution of the Substitute Property Taxesor Substitute Properties for the Affected Property or Affected Properties, will be sufficient to pay all Property Taxes prior to their respective due dates, or (2) if Lender receives an Acceptable Blanket Policy is opinion of counsel that the Securitization will not in effect, the Borrower will deposit into the Insurance Account such amount, fail to maintain its status as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings a REMIC Trust as a result of the Insurance Account on each Monthly Payment Date substitution of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, or Substitute Properties for the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Affected Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basisAffected Properties.
Appears in 1 contract
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages. Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties with a Substitute Property or a portfolio of Substitute Properties provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either a detached single-family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit), but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date after giving effect to the Substitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Property (or portfolio of Replaced Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of Borrower’s right, title and interest in such Replaced Property (or portfolio of Replaced Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substituted) is located, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA that contains at least one Property described on the Properties Schedule as of the Closing Date;
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Properties, together with the BPO Value of all other Replaced Properties since the date hereof, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Properties, Lender shall release the Replaced Property or Replaced Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Property or Replaced Properties encumbers other Property(ies) in addition to the Replaced Property or Replaced Properties, such release shall be a partial release that relates only to the Replaced Property or Replaced Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Property or Replaced Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no Substitution under this Agreement will be permitted unless (1) either (aa) immediately after such Substitution the ratio of the Outstanding Principal Balance to the value of the remaining Properties (as determined by Lender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, if any) is equal to or less than one hundred twenty-five percent (125%) or (bb) the ratio of the Outstanding Principal Balance to the value of the Properties (including the Substitute Property or Substitute Properties) will not increase as a result of such Substitution, or (2) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of such Substitution.
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Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Yield Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit)property, but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substitutedany Affected Property;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for the Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) and based on such Broker Price Opinion(s), the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the there is an Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease)Property;
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced the Affected Property (or portfolio of Replaced Properties) Affected Properties being substituted);
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File deed, Title Insurance Owner’s Policy and the Lease with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substitutedAffected Property) is located, such Mortgage and Collateral Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Collateral Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substitutedan Affected Property) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Affected Properties, together with the BPO Value of all other Replaced Affected Properties since the date hereofClosing Date, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Affected Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Propertiessubstitution, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;; and
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Affected Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on . Any such deposit in the Substitution Date Eligibility Reserve Subaccount or any such substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.2(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no substitution will be permitted unless (1) either (aa) immediately after such substitution the Borrower will deposit into ratio of the Tax Account such amount, unpaid principal balance of the Loan to the value of the remaining Properties (as reasonably determined by LenderLender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, that when aggregated with Tax Funds in if any) is equal to or less than 125% or (bb) the Tax Account and assuming subsequent monthly fundings ratio of the Tax Account on each Monthly Payment Date unpaid principal balance of one-twelfth the Loan to the value of the Properties (1/12including the Substitute Property or Substitute Properties) will not increase as a result of projected annual the substitution of the Substitute Property Taxesor Substitute Properties for the Affected Property or Affected Properties, will be sufficient to pay all Property Taxes prior to their respective due dates, or (2) if Lender receives an Acceptable Blanket Policy is opinion of counsel that the Securitization will not in effect, the Borrower will deposit into the Insurance Account such amount, fail to maintain its status as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings a REMIC Trust as a result of the Insurance Account on each Monthly Payment Date substitution of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, or Substitute Properties for the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Affected Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basisAffected Properties.
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Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit)property, but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Affected Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the there is an Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease)Property;
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File deed, Title Insurance Owner’s Policy and the Lease with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Affected Property or Replaced Affected Properties being substituted) is located, such Mortgage and Collateral Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Collateral Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced an Affected Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value aggregate Allocated Loan Amounts of the Replaced PropertiesDisqualified Properties being substituted, together with the BPO Value aggregate Allocated Loan Amounts of all other Replaced Disqualified Properties that have been substituted with Substitute Properties since the date hereofClosing Date, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing DateInitial Principal Balance;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Affected Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;; and
(xvii) simultaneously Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Affected Property (or portfolio of Affected Properties) being substituted from applicable Mortgage Documents) and, in addition, the fee specified on Schedule VI as being assessed by Servicer to effect releases or assignments. Any such deposit in the Eligibility Reserve Subaccount or any such substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.2(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no substitution under this Agreement will be permitted unless (1) either (aa) immediately after such substitution the ratio of the unpaid principal balance of the Loan to the value of the remaining Properties (as determined by Lender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, if any) is equal to or less than 125% or (bb) the ratio of the unpaid principal balance of the Loan to the value of the Properties (including the Substitute Property or Substitute Properties) will not increase as a result of the substitution of the Substitute Property or Substitute Properties for the Affected Property or Affected Properties, or (2) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the substitution of the Substitute Property or Substitute Properties for the Affected Property or Affected Properties. Simultaneously with the substitution of a Replaced Property or Replaced PropertiesAffected Property, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, provided that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
Appears in 1 contract
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Yield Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, (i) if the breach or failure that resulted in such Property becoming a Disqualified Property relates solely to such Disqualified Property, such breach or failure shall be deemed cured and shall not result in a Default or Event of Default under this Agreement or any other Loan Document, and (ii) Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, ; provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”); and upon such deposit or substitution, if the breach or failure that resulted in such Property becoming a Disqualified Property relates solely to such Disqualified Property, such breach or failure shall be deemed to be cured and shall not result in a Default or Event of Default under this Agreement or any other Loan Document; provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall (1) be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-single family unit), but excluding housing cooperatives and manufactured housing, (2) be subject to an Eligible Lease, and (3) be located in an MSA that contains at least one Property as of the Closing Date, and no such substitute Eligible Property shall change the concentration by more than five percent (5.0%), covered under applicable insurance and title policies;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Affected Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the applicable Affected Property or Affected Properties and the applicable Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) Properties and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the there is an Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease)Property;
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party Party, and Borrower shall deliver to Lender a copy of the deed conveying all of Borrower’s right, title and interest in such Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5V;
(ix) Borrower shall deliver to Lender the Property File deed, Title Insurance Owner’s Policy and the Lease with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Affected Property or Replaced Affected Properties being substituted) is located, such Mortgage and Collateral Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Collateral Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced an Affected Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party Equity Owner incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value aggregate Allocated Loan Amounts of the Replaced PropertiesDisqualified Properties being substituted, together with the BPO Value aggregate Allocated Loan Amounts of all other Replaced Disqualified Properties that have been substituted with Substitute Properties since the date hereofClosing Date, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing DateOutstanding Principal Balance;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Affected Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;; and
(xvii) simultaneously Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the substitution (including, without limitation, reasonable out-of-pocket costs and expenses incurred by Lender in connection with the release of the Affected Property (or portfolio of Affected Properties) being substituted from applicable Mortgage Documents). Any such deposit in the Eligibility Reserve Subaccount or any such substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.2(a). Simultaneously with the substitution of a Replaced Property or Replaced PropertiesAffected Property, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, provided that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay . Notwithstanding anything to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) andcontrary contained herein, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
no event may Borrower substitute Eligible Properties for more than five percent (xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/125.0%) of the projected Insurance Premiums payable for Properties set forth on the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Closing Date Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basisSchedule.
Appears in 1 contract
Sources: Loan Agreement (AG Mortgage Investment Trust, Inc.)
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit)property, but excluding housing cooperatives and cooperatives, manufactured housing, condominiums, duplexes and townhomes;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substitutedany Affected Property;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for the Substitute Properties, if a portfolio of Substitute Properties) Affected Properties is being substituted), and based on such Broker Price Opinion(s), the Substitute Property (or Substitute Properties, in the aggregate, if a portfolio of Substitute PropertiesAffected Properties is being substituted) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted at the time of substitution; provided that, if a Broker Price Opinion with respect to any Affected Property (including any Affected Property included in a portfolio of Affected Properties being substituted) has been obtained within the six (6) month period prior to the date of substitution therefor, the BPO Value of such Affected Property at the time of substitution shall be deemed to be the BPO Value set forth in such Broker Price Opinion;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) the in place Rents under the Lease(s) Lease for the Substitute Property (or under the Leases for the Substitute Properties, in the aggregate, if a portfolio of Replaced Affected Properties are is being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of at the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the Closing Date;
(viivi) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced the Affected Property (or portfolio of Replaced Properties) Affected Properties being substituted);
(viiivii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ixviii) Borrower shall deliver to Lender the Property File deed, Title Insurance Owner’s Policy and the Lease with respect to each Substitute Property;
(xix) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substitutedAffected Property) is located, such Mortgage and Collateral Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Collateral Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xix) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xiixi) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substitutedan Affected Property) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiiixii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xivxiii) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xvxiv) the BPO Value of the Replaced PropertiesAffected Properties at the time of substitution, together with the BPO Value at the time of substitution of all other Replaced Affected Properties since the date hereofClosing Date, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvixv) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened in writing against any Replaced Property being substituted with a Substitute Affected Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xviixvi) simultaneously with the substitution of a Replaced Property or Replaced Propertiessubstitution, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;; and
(xviiixvii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Affected Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on . Any such deposit in the Substitution Date Eligibility Reserve Subaccount or any such substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.2(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no substitution will be permitted unless (1) either (aa) immediately after such substitution the Borrower will deposit into ratio of the Tax Account such amount, unpaid principal balance of the Loan to the value of the remaining Properties (as reasonably determined by LenderLender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, that when aggregated with Tax Funds in if any) is equal to or less than 125% or (bb) the Tax Account and assuming subsequent monthly fundings ratio of the Tax Account on each Monthly Payment Date unpaid principal balance of one-twelfth the Loan to the value of the Properties (1/12including the Substitute Property or Substitute Properties) will not increase as a result of projected annual the substitution of the Substitute Property Taxesor Substitute Properties for the Affected Property or Affected Properties, will be sufficient to pay all Property Taxes prior to their respective due dates, or (2) if Lender receives an Acceptable Blanket Policy is opinion of counsel that the Securitization will not in effect, the Borrower will deposit into the Insurance Account such amount, fail to maintain its status as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings a REMIC Trust as a result of the Insurance Account on each Monthly Payment Date substitution of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, or Substitute Properties for the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Affected Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basisAffected Properties.
Appears in 1 contract
Sources: Loan Agreement (Starwood Waypoint Residential Trust)
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties with a Substitute Property or a portfolio of Substitute Properties Properties; provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit)property, but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date after giving effect to the SubstitutionDate;
(v) the there is an Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease)Property;
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Property (or portfolio of Replaced Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced Property (or portfolio of Replaced Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5V;
(ix) Borrower shall deliver to Lender the Property File deed, Title Insurance Owner’s Policy and the Lease with respect to each Substitute PropertyProperty being substituted;
(x) Borrower shall have executed and delivered to Lender, Lender the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substituted) is located, such Mortgage and Collateral Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Collateral Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA that contains at least one Property described on the Properties Schedule as of the Closing Date;
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value aggregate Allocated Loan Amounts of the Replaced PropertiesDisqualified Properties being substituted under this Section 2.4.2(a), together with the BPO Value aggregate Allocated Loan Amounts of all other Replaced Disqualified Properties that have been substituted with Substitute Properties since the date hereofClosing Date under this Section 2.4.2(a), shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing DateInitial Principal Balance;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously Borrower shall have paid all taxes and all reasonable out-of-pocket costs and expenses incurred by Lender and/or its Servicer in connection with the substitution (including, without limitation, costs and expenses incurred in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the fee specified on Schedule VI as being assessed by Servicer to effect releases or assignments;
(xviii) on the Substitution Date (1) the Borrower will deposit into the Tax Subaccount such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Subaccount and assuming subsequent monthly fundings of the Tax Subaccount on Monthly Payment Dates of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes by the thirtieth (30th) day prior to the date such Taxes become due, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Subaccount such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Subaccount and assuming subsequent monthly fundings of the Insurance Subaccount on Monthly Payment Dates of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Subaccount such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Subaccount, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months. Any such deposit in the Eligibility Reserve Subaccount or any such Substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.2(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no Substitution under this Agreement will be permitted unless (1) either (aa) immediately after such Substitution the ratio, expressed as a percentage, of the Outstanding Principal Balance to the value of the remaining Properties (as determined by Lender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, if any) is equal to or less than 125% or (bb) the ratio of the Outstanding Principal Balance to the value of the Properties (including the Substitute Property or Substitute Properties) will not increase as a result of such Substitution, or (2) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of such Substitution. Simultaneously with the Substitution of a Replaced Property or Replaced PropertiesProperty, Lender shall release the Replaced Property or Replaced Properties from the applicable Mortgage Documents and related Lien, provided, provided that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Replaced Property or Replaced Properties encumbers other Property(ies) in addition to the Replaced Property or Replaced Properties, such release shall be a partial release that relates only to the Replaced Property or Replaced Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Property or Replaced Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
Appears in 1 contract
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit)property, but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substitutedany Affected Property;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for the Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) and based on such Broker Price Opinion(s), the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months as long as the remaining term of the Lease for the Affected Property (without giving effect to any extension option in such leaseLease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced the Affected Property (or portfolio of Replaced Properties) Affected Properties being substituted);
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File deed, Title Insurance Owner’s Policy and the Lease with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Collateral Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substitutedAffected Property) is located, such Mortgage and Collateral Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Collateral Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substitutedan Affected Property) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Affected Properties, together with the BPO Value of all other Replaced Affected Properties since the date hereofClosing Date, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Affected Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Propertiessubstitution, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;; and
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Affected Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on . Any such deposit in the Substitution Date Eligibility Reserve Subaccount or any such substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.2(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no substitution will be permitted unless (1) either (aa) immediately after such substitution the Borrower will deposit into ratio of the Tax Account such amount, unpaid principal balance of the Loan to the value of the remaining Properties (as reasonably determined by LenderLender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, that when aggregated with Tax Funds in if any) is equal to or less than 125% or (bb) the Tax Account and assuming subsequent monthly fundings ratio of the Tax Account on each Monthly Payment Date unpaid principal balance of one-twelfth the Loan to the value of the Properties (1/12including the Substitute Property or Substitute Properties) will not increase as a result of projected annual the substitution of the Substitute Property Taxesor Substitute Properties for the Affected Property or Affected Properties, will be sufficient to pay all Property Taxes prior to their respective due dates, or (2) if Lender receives an Acceptable Blanket Policy is opinion of counsel that the Securitization will not in effect, the Borrower will deposit into the Insurance Account such amount, fail to maintain its status as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings a REMIC Trust as a result of the Insurance Account on each Monthly Payment Date substitution of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, or Substitute Properties for the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Affected Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basisAffected Properties.
Appears in 1 contract
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender Administrative Agent and either:
(i) prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on ;
(ii) for any such prepayment unless such Disqualified Property became other than a Property that has become a Disqualified Property by virtue of a Casualty or Condemnation, deposit an amount equal to one hundred percent (100%) of the Release Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10; or
(iii) for any Disqualified Property other than a Property that has become a Disqualified Property by virtue of a Casualty or Condemnation, substitute such Disqualified Property or a portfolio of Disqualified Properties with a Substitute Property or a portfolio of Substitute Properties provided that, in the case of a proposed Substitution, the conditions set forth in Section 2.11 are satisfied, provided that notwithstanding anything to the contrary contained herein, in the event the aggregate BPO Value of all Disqualified Properties which have not been released from the applicable Mortgage Documents in accordance with Section 2.4.3(a) or become Replaced Properties as a result of a Voluntary ActionSubstitution is greater than two percent (2%) of the aggregate BPO Value of all Properties at any time (the “Disqualified Property Collateral Threshold”), Borrower shall be required to deposit the Eligibility Funds plus interest payable through the end of the then-current Interest Period allocable to the Release Amounts of such Disqualified Properties in the Eligibility Reserve Account within five (5) Business Days of the Disqualified Property Collateral Threshold being exceeded (to the extent such Eligibility Funds have not already been so deposited). After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender Administrative Agent shall direct Collateral Agent to release the relevant Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender Administrative Agent and Collateral Agent a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of LenderAdministrative Agent and Collateral Agent, (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and LenderAdministrative Agent’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages. Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties with a Substitute Property or a portfolio of Substitute Properties provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either a detached single-family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit), but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date after giving effect to the Substitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Property (or portfolio of Replaced Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of Borrower’s right, title and interest in such Replaced Property (or portfolio of Replaced Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substituted) is located, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA that contains at least one Property described on the Properties Schedule as of the Closing Date;
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Properties, together with the BPO Value of all other Replaced Properties since the date hereof, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Properties, Lender shall release the Replaced Property or Replaced Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Property or Replaced Properties encumbers other Property(ies) in addition to the Replaced Property or Replaced Properties, such release shall be a partial release that relates only to the Replaced Property or Replaced Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Property or Replaced Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
Appears in 1 contract
Disqualified Properties. If at any time any Property shall become a Disqualified Property, subject to the satisfaction of the items required by the next sentence to the extent required for prepayment, Borrower shall, no later than the close of business on the fifth (5th) last Business Day following of the last day of month in which the applicable Cure PeriodPeriod ends (the “Mandatory Prepayment Date”), if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium , which payment shall be owing on any such prepayment unless such Property became applied to repayment of the Debt (as of the Mandatory Prepayment Date). At least ten (10) Business Days prior to the Mandatory Prepayment Date, Borrower shall deliver to Lender a Request for Release of Disqualified Property, together with all attachments thereto, and include (v) sufficient information to identify the Disqualified Property and for Lender to understand the payoff requirements, prepare the payoff quote, and complete the payoff; and (w) such other information as a result of a Voluntary Action. After Lender may reasonably request that is reasonably necessary to effectuate and complete the prepayment of the Debt by the Release Amount with respect to a such Disqualified Property as provided above, Lender shall and the release the of such Disqualified Property from the applicable Mortgage Documents and related Lien, Property; provided, that ▇▇▇▇▇▇ and Borrower shall mutually cooperate to complete Schedule II to each Request for Release of Disqualified Property by the Mandatory Prepayment Date and prior to the release. On or before the Mandatory Prepayment Date, Borrower shall (xy) Borrower has delivered deliver to Lender a draft release release, (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages. Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties with a Substitute Property or a portfolio of Substitute Properties provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either a detached single-family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit), but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date after giving effect to the Substitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Property (or portfolio of Replaced Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of Borrower’s right, title and interest in such Replaced Property (or portfolio of Replaced Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substituted) is located, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA that contains at least one Property described on the Properties Schedule as of the Closing Date;
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Properties, together with the BPO Value of all other Replaced Properties since the date hereof, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Properties, Lender shall release the Replaced Property or Replaced Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Property or Replaced Properties encumbers other Property(ies) in addition to the Replaced Property or Replaced Properties, such release shall be a partial release that relates only to the Replaced Property or Replaced Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Property or Replaced Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.the
Appears in 1 contract
Disqualified Properties. If at any time any Property shall become a Disqualified Property, subject to the satisfaction of the items required by the next sentence to the extent required for prepayment, Borrower shall, no later than the close of business on the fifth (5th) last Business Day following of the last day of month in which the applicable Cure PeriodPeriod ends (the “Mandatory Prepayment Date”), if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium , which payment shall be owing on any such prepayment unless such Property became applied to repayment of the Debt (as of the Mandatory Prepayment Date). At least ten (10) Business Days prior to the Mandatory Prepayment Date, Borrower shall deliver to Lender a Request for Release of Disqualified Property, together with all attachments thereto, and include (v) sufficient information to identify the Disqualified Property and for Lender to understand the payoff requirements, prepare the payoff quote, and complete the payoff; and (w) such other information as a result of a Voluntary Action. After Lender may reasonably request that is reasonably necessary to effectuate and complete the prepayment of the Debt by the Release Amount with respect to a such Disqualified Property as provided above, Lender shall and the release the of such Disqualified Property from the applicable Mortgage Documents and related Lien, Property; provided, that Lend▇▇ ▇▇▇ Borrower shall mutually cooperate to complete Schedule II to each Request for Release of Disqualified Property by the Mandatory Prepayment Date and prior to the release. On or before the Mandatory Prepayment Date, Borrower shall (xy) Borrower has delivered deliver to Lender a draft release release, (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and which shall contain standard provisions protecting the rights of LenderLender as set forth on Exhibit F, and (yz) without duplication of the Release Amount, Borrower shall pay all coststaxes, taxes out-of-pocket costs and other reasonable expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees). Notwithstanding anything herein to the contrary, no Yield Maintenance Premium shall be due in connection with any such prepayment made pursuant to this Section 2.4.3
(a) (except where such prepayment arises as a result of a Voluntary Action). After the prepayment of the Debt by the Release Amount (as calculated on Schedule II of the applicable Request for Release of Disqualified Property) with respect to a Disqualified Property as provided above and receipt of all documents and information required by this Section 2.4.3
(za) Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien. For the avoidance of doubt, the prepayment of the Debt shall be permitted to occur before all of the conditions for the release of such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgagesapplicable Mortgage Documents and related Lien have been satisfied. Notwithstanding the foregoing, in lieu of such prepayment, no later than the Mandatory Prepayment Date, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10 or (2) substitute deliver to Lender a written notice of proposed substitution (as described in clause (i) below) of a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute Property or a portfolio of Substitute Properties provided that, in the case of a proposed substitutionSubstitution, all of the following conditions are satisfied:
(i) Borrower shall have submitted to Lender, not less than ten (10) Business Days prior to the proposed Substitution Date, written notice of the proposed Substitution, provided, that for the avoidance of doubt, such notice period is the minimum notice period required and not an outside date by which such Substitution is to be completed;
(ii) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit)property, but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date after giving effect to the Substitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Property (or portfolio of Replaced Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of Borrower’s right, title and interest in such Replaced Property (or portfolio of Replaced Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substituted) is located, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA that contains at least one Property described on the Properties Schedule as of the Closing Date;
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Properties, together with the BPO Value of all other Replaced Properties since the date hereof, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Properties, Lender shall release the Replaced Property or Replaced Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Property or Replaced Properties encumbers other Property(ies) in addition to the Replaced Property or Replaced Properties, such release shall be a partial release that relates only to the Replaced Property or Replaced Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Property or Replaced Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
Appears in 1 contract
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Collateral Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account Subaccount in accordance with and subject to Section 6.10 6.5 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Substitute Properties provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either a detached single-family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit), but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date after giving effect to the Substitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Property (or portfolio of Replaced Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of Borrower’s right, title and interest in such Replaced Property (or portfolio of Replaced Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substituted) is locatedeach, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA that contains at least one Property described on the Properties Schedule as of the Closing Date;
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Properties, together with the BPO Value of all other Replaced Properties since the date hereof, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Properties, Lender shall release the Replaced Property or Replaced Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Property or Replaced Properties encumbers other Property(ies) in addition to the Replaced Property or Replaced Properties, such release shall be a partial release that relates only to the Replaced Property or Replaced Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Property or Replaced Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.a
Appears in 1 contract
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages. Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either a detached single-family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit), but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Affected Property or Replaced Affected Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) being substituted and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) being substituted shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of Borrower’s right, title and interest in such Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Affected Property which was previously a Substitute Property, the date such Replaced Affected Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Affected Property or Replaced Affected Properties being substituted) is located, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: :
(A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced an Affected Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Affected Properties, together with the BPO Value of all other Replaced Affected Properties since the date hereof, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Affected Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced an Affected Property or Replaced Affected Properties, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Affected Property (or portfolio of Replaced Affected Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;; and
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Affected Property or Replaced Affected Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis. Any such deposit in the Eligibility Reserve Account or any such substitution shall be completed no later than the due date for the prepayment required under this Section 2.4.3(a). Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust, no substitution under this Agreement will be permitted unless (1) either (aa) immediately after such substitution the ratio of the unpaid principal balance of the Loan to the value of the remaining Properties (as determined by Lender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the value of personal property (other than fixtures) or going concern value, if any) is equal to or less than one hundred twenty-five percent (125%) or (bb) the ratio of the unpaid principal balance of the Loan to the value of the Properties (including the Substitute Property or Substitute Properties) will not increase as a result of the substitution of the Substitute Property or Substitute Properties for the Affected Property or Affected Properties, or (2) Lender receives an opinion of counsel that the Securitization will not fail to maintain its status as a REMIC Trust as a result of the substitution of the Substitute Property or Substitute Properties for the Affected Property or Affected Properties.
Appears in 1 contract
Sources: Loan Agreement
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth (5th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property. No Spread Maintenance Premium shall be owing on any such prepayment unless such Property became a Disqualified Property as a result of a Voluntary Action. After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that (x) Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Disqualified Property encumbers other Property(ies) in addition to the Disqualified Property, such release shall be a partial release that relates only to the Disqualified Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified Property is located and shall contain standard provisions protecting the rights of Lender, Lender and (y) Borrower shall pay all costs, taxes and expenses associated with such release (including, without limitation, cost to file and record the release and Lender’s reasonable attorneys’ fees) and (z) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages). Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) % of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties (each, an “Affected Property” and collectively, the “Affected Properties”) with a Substitute substitute Eligible Property or a portfolio of Eligible Properties (each, a “Substitute Properties Property” and collectively, the “Substitute Properties”) provided that, in the case of a proposed substitution, all of the following conditions are satisfied:
(i) each substitute Eligible Property is either shall be a detached single-single family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit)property, but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substitutedany Affected Property;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for the Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) and based on such Broker Price Opinion(s), the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted at the time of substitution;
(iv) Borrower shall deliver to Lender an Officer’s Certificate stating that each Substitute Property satisfies each of the Property Representations and is in compliance with each of the Property Covenants on the Substitution Date date of the substitution after giving effect to the Substitutionsubstitution;
(v) the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Affected Properties are being substituted) shall be equal to or greater than the greater of (A) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the time of substitution and (B) the in place Rents under the Lease(s) for the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted measured as of the Closing Date;
(vii) simultaneously with the Substitutionsubstitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Affected Property (or portfolio of Replaced PropertiesAffected Properties being substituted) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of or Borrower’s right, title and interest in such Replaced the Affected Property (or portfolio of Replaced Properties) Affected Properties being substituted);
(viii) Borrower shall deliver on or prior to the Substitution Date date of substitution evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is located, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substitutedAffected Property) is located, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to Lender the following opinions of counsel: (A) an opinion of counsel admitted to practice under the laws of the state in which the Substitute Property (or Substitute Properties, if a portfolio of Substitute PropertiesAffected Properties are being substituted) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability of the Substitute Mortgage Documents with respect to the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and that the execution and delivery of such Substitute Mortgage Documents and the performance by Borrower of its obligations thereunder will not cause a breach or a default under, any agreement, document or instrument to which Borrower is a party or to which it or the Properties are bound and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each the Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which one or more other Properties (other than a Replaced Property being substitutedan Affected Property) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA a metropolitan statistical area that contains at least one Property property described on the Properties Schedule as of the Closing Date;,
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Affected Properties, together with the BPO Value of all other Replaced Affected Properties since the date hereof, shall be no more than ten percent (10%) of the aggregate BPO Values of all Properties as of the Closing Date;
(xvi) if any Lien, litigation or governmental proceeding is existing or pending or, to the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Affected Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Propertiessubstitution, Lender shall release the Replaced Affected Property or Replaced Affected Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Affected Property or Replaced Affected Properties encumbers other Property(ies) in addition to the Replaced Affected Property or Replaced Affected Properties, such release shall be a partial release that relates only to the Replaced Affected Property or Replaced Affected Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Replaced Affected Property or Replaced Affected Properties are located which contains standard provisions protecting the rights of Lender;; and
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Affected Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
Appears in 1 contract
Disqualified Properties. If at any time any Property shall become a Disqualified Property, Borrower shall, no later than the close of business on the fifth fifteenth (5th15th) Business Day following the last day of the applicable Cure Period, if any, give notice thereof to Lender and prepay the Debt in the applicable Release Amount with respect to such Property; provided that, for the avoidance of doubt, such Property shall not be released from the applicable Mortgage Documents and the Collateral located at such Property shall not be released from the security interest and Lien thereon unless and until the satisfaction of the conditions set forth below (or, in the case Borrower elects to conduct a Substitution as contemplated in the last sentence of this Section 2.4.3(a), the conditions set forth in Section 2.7). No Spread Yield Maintenance Premium shall be owing on any such prepayment unless such (except in connection with a prepayment made prior to the Yield Maintenance End Date for a Property that became a Disqualified Property as a result of a Voluntary Action). After the prepayment of the Debt by the Release Amount with respect to a Disqualified Property as provided above, Lender shall release the Disqualified Property from the applicable Mortgage Documents and related Lien, provided, that the following conditions precedent to such Transfer are satisfied as determined by Lender in its sole discretion and Borrower is notified in writing of Lender’s determination in accordance with Section 2.12:
(xi) Borrower has delivered shall have submitted to Lender, not less than fifteen (15) Business Days prior to the Transfer Date, a Request for Release, together with all attachments thereto and evidence reasonably satisfactory to Lender that the conditions precedent set forth in this Section 2.4.3
(a) will be satisfied upon the consummation of such Transfer, and shall pay to Lender the ▇▇▇▇▇▇ ▇▇▇ Release Fee concurrently therewith;
(ii) Borrower shall have submitted to Lender, not less than fifteen (15) Business Days prior to the Transfer Date, a draft release for the applicable Mortgage Documents (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Disqualified Release Property encumbers encumber other Property(ies) in addition to the Disqualified Release Property, such release shall be a partial release that relates only to the Disqualified Release Property and does not affect the Liens and security interests encumbering or on the other Property(ies)) in form and substance appropriate for the jurisdiction in which such Disqualified the Release Property is located and shall contain standard provisions protecting the rights of Lender. In addition, Borrower shall have provided all other documentation of a ministerial or administrative nature that Lender reasonably requires to be delivered by Borrower in connection with such Transfer;
(yiii) Borrower shall pay have paid all costs, taxes and all reasonable out-of-pocket costs and expenses associated incurred by Lender and/or its Servicer in connection with any such release Transfer and the current reasonable and customary fee being assessed by Servicer for its own account to effect such Transfer;
(includingiv) Borrower shall furnish or cause to be furnished to Lender in such manner and in such detail as may be requested by Lender such information, without limitationdocuments, cost records or reports as may be requested by Lender in connection with evaluating whether such Transfer satisfies the conditions set forth in this Section 2.4.3(a);
(v) the Disqualified Property shall be Transferred to file and record the release and Lender’s reasonable attorneys’ fees) and a Person other than Borrower or any other Loan Party;
(zvi) such Disqualified Property is a separate legal parcel from the property remaining encumbered by Mortgages. Notwithstanding the foregoing, in lieu of such prepayment, Borrower may either (1) deposit an amount equal to one hundred percent (100%) of the Allocated Loan Amount for such Disqualified Property in the Eligibility Reserve Account in accordance with and subject to Section 6.10 or (2) substitute a Disqualified Property or a portfolio of Disqualified Properties with a Substitute Property or a portfolio of Substitute Properties provided that, in the case of a proposed substitution, all of the following conditions are satisfied:; and
(i) each substitute Eligible Property is either a detached single-family residential real property or a condominium or townhome (so long as condominium units and townhomes constitute no more than two percent (2%) of the Properties by BPO Value and provided no condominium that is a Substitute Property shall consist of more than one single-family unit), but excluding housing cooperatives and manufactured housing;
(ii) no Event of Default shall have occurred and be continuing except as related to, and cured by the removal of, the Replaced Property or Replaced Properties being substituted;
(iii) Lender shall have obtained, at Borrower’s sole cost and expense, a Broker Price Opinion for the Substitute Property (or Broker Price Opinions for a portfolio of Substitute Properties) and based on such Broker Price Opinion(s), the Substitute Property (or portfolio of Substitute Properties) shall have the same or greater BPO Value as the greater of (x) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted as of the Closing Date and (y) the BPO Value of the Replaced Property (or portfolio of Replaced Properties) being substituted at the time of substitution;
(ivvii) Borrower shall deliver to Lender an Officer’s Certificate stating certifying that each Substitute Property satisfies each this Section 2.4.3
(a) has been complied with in its entirety. Notwithstanding anything to the contrary contained herein or in any other Loan Document, if the Loan is included in a REMIC Trust and the ratio, expressed as a percentage, of the Property Representations and is in compliance with each Outstanding Principal Balance to the value of the Property Covenants on remaining Properties (as determined by Lender in its sole discretion using any commercially reasonable method permitted to a REMIC Trust; and which shall exclude the Substitution Date value of any personal property (other than fixtures) or going concern value, if any) exceeds or would exceed one hundred twenty-five percent (125%) immediately after giving effect to the Substitution;
(v) Transfer of the Eligible Lease for each Substitute Property shall have a remaining contractual term of at least six (6) months (without giving effect to any extension option in such lease);
(vi) Release Property, no Transfer will be permitted unless the in place Rents under the Lease(s) for the Substitute Property (or Substitute Properties, if a portfolio of Replaced Properties are being substituted) shall be equal to or greater Outstanding Principal Balance is prepaid by an amount not less than the greater of (Ai) the in place Rents under the Lease(s) for the Replaced Property Release Amount or (or portfolio of Replaced Properties) being substituted measured as of the time of substitution and (Bii) the least amount that is a “qualified amount” as that term is defined in place Rents under the Lease(s) for the Replaced Property (or portfolio of Replaced Properties) being substituted measured IRS Revenue Procedure 2010-30, as of the Closing Date;
(vii) simultaneously with the Substitution, Borrower shall convey all of Borrower’s right, title and interest in, to and under the Replaced Property (or portfolio of Replaced Properties) being substituted to a Person other than Borrower or a Loan Party or any Person owned directly or indirectly to Borrower or a Loan Party and Borrower shall deliver to Lender a copy of the deed conveying all of Borrower’s right, title and interest in such Replaced Property (or portfolio of Replaced Properties) being substituted;
(viii) Borrower shall deliver on or prior to the Substitution Date evidence satisfactory to Lender that each Substitute Property is insured pursuant to Policies meeting the requirements of Article 5;
(ix) Borrower shall deliver to Lender the Property File with respect to each Substitute Property;
(x) Borrower shall have executed and delivered to Lender, the Mortgage Documents with respect to each Substitute Property, which shall be in substantially the same form as the Mortgage, Assignment of Leases and Rents and Fixture Filing, if applicable, executed and/or delivered on the Closing Date (or with respect to any such Replaced Property which was previously a Substitute Property, the date such Replaced Property became collateral for the Loan) with such changes as may be necessitated amended, replaced, supplemented or appropriate (as reasonably determined by Lender) for the jurisdiction in which the Substitute Property is locatedmodified from time to time, and which may, in Lender’s reasonable discretion, be Mortgage Documents with respect to only such Substitute Property (and in the event the Substitute Property is located in the same county or parish in which one or more other Properties (other than the Replaced Property or Replaced Properties being substituted) is located, such Mortgage and Assignment of Leases and Rents may be in the form of an amendment and spreader agreement to the existing Mortgage and Assignment of Leases and Rents covering such Property or Properties located in the same county or parish as the Substitute Property, in each case, in form and substance reasonably acceptable to Lender) (the “Substitute Mortgage Documents”);
(xi) Borrower shall deliver to unless Lender the following opinions of counsel: (A) receives an opinion of counsel admitted that, if this paragraph is applicable but not followed or is no longer applicable at the time of such release, the Securitization will not fail to practice under the laws maintain its status as a REMIC Trust as a result of the state in which the Substitute Property (or portfolio of Substitute Properties) being substituted is located in form and substance reasonably satisfactory to Lender opining as to the enforceability Transfer of the Substitute Mortgage Documents with respect to Release Property. Further, no Transfer will be permitted unless immediately after such Transfer, the Substitute Property (or portfolio of Substitute Properties) and (B) an opinion stating that the Substitute Mortgage Documents were duly authorized, executed and delivered by Borrower and otherwise in form and substance reasonably satisfactory to Lender;
(xii) Lender shall have received a Title Insurance Policy for each Substitute Property (or, in the event a Substitute Property is located in the same county or parish in which Outstanding Principal Balance will not exceed one or more other Properties (other than a Replaced Property being substituted) is located, an endorsement to the existing Title Insurance Policy with respect to such Property or Properties located in the same county or parish as such Substitute Property in form and substance reasonably satisfactory to Lender) insuring the Lien of the Mortgage encumbering such Substitute Property as a valid first lien on such Substitute Property, free and clear of all exceptions other than the Permitted Liens;
(xiii) each Substitute Property shall be located in an MSA that contains at least one Property described on the Properties Schedule as of the Closing Date;
(xiv) no acquisition of a Substitute Property will result in Borrower or any other Loan Party incurring any Indebtedness (except as permitted by this Agreement);
(xv) the BPO Value of the Replaced Properties, together with the BPO Value of all other Replaced Properties since the date hereof, shall be no more than ten hundred percent (10100%) of the aggregate BPO fair market value of the remaining Properties (which fair market value is determined for these purposes based on the aggregate Property Values of all Properties as of the Closing Date;remaining Properties).
(xvia) if any Lien, litigation or governmental proceeding is existing or pending or, to and completed no later than 45 days after the actual knowledge of a Responsible Officer of Manager or a Loan Party, threatened against any Replaced Property being substituted with a Substitute Property or against such Substitute Property which may result in liability for Borrower, Borrower shall have deposited with Lender reserves reasonably satisfactory to Lender as security due date for the satisfaction of such liability;
(xvii) simultaneously with the substitution of a Replaced Property or Replaced Properties, Lender shall release the Replaced Property or Replaced Properties from the applicable Mortgage Documents and related Lien, provided, that Borrower has delivered to Lender a draft release (and, in the event the Mortgage and the Assignment of Leases and Rents applicable to the Replaced Property or Replaced Properties encumbers other Property(ies) in addition to the Replaced Property or Replaced Properties, such release shall be a partial release that relates only to the Replaced Property or Replaced Properties being substituted and does not affect the Liens and security interests encumbering or on the other Property(iesprepayment otherwise required under Section 2.4.3(a)) in form and substance appropriate for the jurisdiction in which such Replaced Property or Replaced Properties are located which contains standard provisions protecting the rights of Lender;
(xviii) Borrower shall pay to Lender all reasonable out-of-pocket costs and expenses incurred by Lender in connection with the Substitution (including, without limitation, costs and expenses incurred by Lender in connection with the release of the Replaced Property (or portfolio of Replaced Properties) being substituted from applicable Mortgage Documents) and, in addition, the current reasonable and customary fee being assessed by Lender and/or its Servicer to effect releases or assignments;
(xix) on the Substitution Date (1) the Borrower will deposit into the Tax Account such amount, as reasonably determined by Lender, that when aggregated with Tax Funds in the Tax Account and assuming subsequent monthly fundings of the Tax Account on each Monthly Payment Date of one-twelfth (1/12) of projected annual Property Taxes, will be sufficient to pay all Property Taxes prior to their respective due dates, (2) if an Acceptable Blanket Policy is not in effect, the Borrower will deposit into the Insurance Account such amount, as reasonably determined by Lender, that when aggregated with Insurance Funds in the Insurance Account and assuming subsequent monthly fundings of the Insurance Account on each Monthly Payment Date of one-twelfth (1/12) of the projected Insurance Premiums payable for the renewal of the coverage afforded by the Policies, will be sufficient to pay all such Insurance Premiums prior to the expiration of the Policies, and (3) if the Substitute Property is an Applicable HOA Property, the Borrower will deposit into the HOA Account such amount, as reasonably determined by Lender, that when aggregated with HOA Funds in the HOA Account, will be sufficient to pay projected HOA Fees with respect to all Applicable HOA Properties during the ensuing twelve (12) months; and
(xx) the Replaced Property or Replaced Properties shall constitute separate legal parcels from the property remaining encumbered by Mortgages, and each Substitute Property shall be comprised of one or more separate legal parcels on a stand-alone basis.
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