Conditions Precedent for the Lessor. the Agent, the Lenders and the Holders Relating to the Initial Closing Date and the Advance of Funds for the Acquisition of a Property. The obligations (i) on the Initial Closing Date of the Lessor, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Lenders to make Loans in order to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(a) and 7.2 of this Agreement and (iii) on a Property Closing Date for the purpose of providing funds to the Lessor necessary to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(b) and 7.2 of this Agreement and to acquire a Property (an “Acquisition Advance”), in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured Parties, in their reasonable discretion; notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 which are required to be performed by such party): (a) the correctness of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and each certificate delivered pursuant to any Operative Agreement on each such date; (b) the performance by the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date; (c) the Agent shall have received a fully executed counterpart copy of the Requisition, appropriately completed; (d) [Intentionally Omitted]; (e) the Construction Agent shall have delivered to the Agent a good standing certificate for the Construction Agent in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), and a copy of the Xxxx of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State; (f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Advance requested by each such Requisition; (g) the Construction Agent shall have delivered to the Agent title insurance commitments to issue policies respecting each such Property, with such endorsements as are available that the Agent deems necessary, in favor of the Lessor and the Agent from a title insurance company acceptable to the Agent in its reasonable discretion, but only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,; (h) the Construction Agent shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of loss; (i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared (i) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and (ii) in a manner and including such information as is reasonably required by the Agent; (j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit B or in such other form as is reasonably acceptable to the Agent with respect to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable to the Agent; (k) the Agent shall be satisfied that the acquisition and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements; (l) the Construction Agent shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition); (m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form; (n) the Lessee and the Lessor shall have delivered to the Agent with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such other form as is reasonably acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording); (o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom; (p) [Intentionally Omitted]; (q) [Intentionally Omitted]; (r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable; (s) the Construction Agent shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease; (t) the Construction Agent shall have caused an appraisal regarding each such Property evidencing an appraised amount equal to at least ninety percent (90%) of (i) the Property Cost to be funded by the Lenders and the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”). (u) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent; (v) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent; (w) in the reasonable opinion of the Agent and its counsel, the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines; (x) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements; (y) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this Agreement) of the Parent and its Consolidated Subsidiaries, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative Agreements; (z) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement; (iii) each Operative Agreement to which the Lessee is a party is in full force and effect with respect to it; and (iv) the Lessee has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date; (aa) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lessee, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D or in such other form as is reasonably acceptable to the Agent attaching and certifying as to (A) the resolutions of its Board of Directors duly authorizing the execution, delivery and performance by the Lessee of each of the Operative Agreements to which it is or will be a party, (B) its certificate of incorporation certified as of a recent date by the Secretary of State of its state of incorporation, (C) its by-laws and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee is incorporated and where the principal place of business of the Lessee is located as to its good standing in each such state; (bb) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E or in such other form as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date; (cc) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in substantially the form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency; (dd) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit G or in such other form as is reasonably acceptable to the Agent; and (ee) as of the Initial Closing Date only, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent.
Appears in 2 contracts
Samples: Participation Agreement (Sabre Holdings Corp), Participation Agreement (Sabre Holdings Corp)
Conditions Precedent for the Lessor. the AgentTHE AGENT, the Lenders and the Holders Relating to the Initial Closing Date and the Advance of Funds for the Acquisition of a PropertyTHE LENDERS AND THE ------------------------------------------------------------------- HOLDERS RELATING TO THE ADVANCE OF FUNDS AFTER THE ACQUISITION -------------------------------------------------------------- ADVANCE. ------- The obligations (i) on the Initial Closing Date of the Lessor, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Lenders to make Loans in order connection with all requests for Advances subsequent to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(a) and 7.2 acquisition of this Agreement and (iii) on a Property Closing Date for the purpose of providing funds to the Lessor necessary (and to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(b) and 7.2 Section 7.1 of this Agreement and to acquire a Property (an “Acquisition Advance”), in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)connection therewith) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured PartiesAgent, in their its reasonable discretion; notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 5.4 which are required to be performed by such party):
(a) the material correctness on such date of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and in each certificate delivered pursuant to any Operative Agreement on each such date(including without limitation the Incorporated Representations and Warranties);
(b) the performance by the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy of the Requisition, appropriately completed;
(d) [Intentionally Omitted]based upon the applicable Construction Budget which shall satisfy the requirements of this Agreement, the Available Commitments plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Construction Advance) will be sufficient to complete the Improvements;
(e) the Construction Agent shall have delivered to the Agent a good standing certificate for the Construction Agent in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), and a copy of the Xxxx of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Construction Advance requested by each such the applicable Requisition;
(f) the title insurance policy delivered in connection with the requirements of Section 5.3
(g) shall provide for (or shall be endorsed to provide for) insurance in an amount at least equal to the maximum total Property Cost indicated by the Construction Agent Budget referred to in subparagraph (d) above and there shall have delivered to the Agent be no title insurance commitments to issue policies respecting each such Property, with such endorsements as are available that the Agent deems necessary, in favor of the Lessor and the Agent from a title insurance company acceptable change or exception objectionable to the Agent in its reasonable discretion, but only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,;
(h) the Construction Agent shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of loss;
(i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared (i) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and (ii) in a manner and including such information as is reasonably required by the Agent;
(j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit B or in such other form as is reasonably acceptable to the Agent with respect to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable to the Agent;
(k) the Agent shall be satisfied that the acquisition and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition);
(m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form;
(n) the Lessee and the Lessor shall have delivered to the Agent with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such other form as is reasonably acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom;
(p) [Intentionally Omitted];
(q) [Intentionally Omitted];
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease;
(t) the Construction Agent shall have caused an appraisal regarding each such Property evidencing an appraised amount equal to at least ninety percent (90%) of (i) the Property Cost to be funded by the Lenders and the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).
(u) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent;
(v) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent;
(w) in the reasonable opinion of the Agent and its counsel, the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines;
(x) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements;
(y) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this Agreement) of the Parent and its Consolidated Subsidiaries, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement; (iii) each Operative Agreement to which the Lessee is a party is in full force and effect with respect to it; and (iv) the Lessee has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lessee, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D or in such other form as is reasonably acceptable to the Agent attaching and certifying as to (A) the resolutions of its Board of Directors duly authorizing the execution, delivery and performance by the Lessee of each of the Operative Agreements to which it is or will be a party, (B) its certificate of incorporation certified as of a recent date by the Secretary of State of its state of incorporation, (C) its by-laws and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee is incorporated and where the principal place of business of the Lessee is located as to its good standing in each such state;
(bb) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E or in such other form as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(cc) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in substantially the form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(dd) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit G or in such other form as is reasonably acceptable to the Agent; and
(ee) as of the Initial Closing Date only, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent.
Appears in 1 contract
Conditions Precedent for the Lessor. the AgentTHE AGENT, the Lenders and the Holders Relating to the Initial Closing Date and the Advance of Funds for the Acquisition of a PropertyTHE LENDERS AND THE -------------------------------------------------------------------- HOLDERS RELATING TO THE INITIAL CLOSING DATE AND THE ADVANCE OF FUNDS --------------------------------------------------------------------- FOR THE ACQUISITION OF A PROPERTY. --------------------------------- The obligations (i) on the Initial Closing Date of the Lessor, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Lenders to make Loans in order to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections Section 7.1(a) and 7.2 of this Agreement and (iii) on a Property Closing Date for the purpose of providing funds to the Lessor necessary to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections Section 7.1(b) and 7.2 of this Agreement and to acquire or ground lease a Property (an “"Acquisition ----------- Advance”"), in each case (with regard to the foregoing Sections 5.3(i), (ii) and ------- (iii)) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured PartiesAgent, in their its reasonable discretion; notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 which are required to be performed by such party):
(a) the material correctness of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and each certificate delivered pursuant to any Operative Agreement (including without limitation the Incorporated Representations and Warranties) on each such date;
(b) the performance by the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy of the Requisition, appropriately completed;
(d) [Intentionally Omitted]title to each such Property shall conform to the representations and warranties set forth in Section 6.2(l) hereof;
(e) the Construction Agent shall have delivered to the Agent a good standing certificate for the Construction Agent in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), a copy of the Ground Lease (if any), and a copy of the Xxxx of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired or ground leased on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired or ground leased with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Advance requested by each such Requisition;
(g) the Construction Agent shall have delivered to the Agent title insurance commitments to issue policies respecting each such Property, with such endorsements as are available that the Agent deems necessary, Property in favor of the Lessor and the Agent from a title insurance company reasonably acceptable to the Agent in its reasonable discretionAgent, but only with such title exceptions thereto as are reasonably acceptable to the Agent in its reasonable discretion,Agent;
(h) the Construction Agent shall have delivered to the Agent an a Phase I environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional reasonably acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of lossAgent;
(i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared (i) by an independent recognized professional reasonably acceptable to the Agent in its reasonable discretion, and (ii) in a manner and including such information as is reasonably required by the Agent;
(j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit B or in such other form as is reasonably acceptable to the Agent --------- with respect to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable to the Agent;
(k) the Agent shall be satisfied that the acquisition and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements[INTENTIONALLY OMITTED];
(l) the Construction Agent shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), ) or 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition)appropriate;
(m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is reasonably acceptable to the Agent, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form;
(n) the Lessee and the Lessor shall have delivered to the Agent with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such --------- other form as is reasonably acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom;
(p) [Intentionally Omitted]if any such Property is subject to a Ground Lease, the Construction Agent shall have caused a lease memorandum (or short form lease) to be delivered to the Agent for such Ground Lease and, if requested by the Agent, a landlord waiver and a mortgagee waiver (in each case, in such form as is reasonably acceptable to the Agent);
(q) [Intentionally Omitted]counsel (reasonably acceptable to the Agent) for the ground lessor of each such Property subject to a Ground Lease shall have issued to the Lessor, the Agent, the Lenders and the Holders, its opinion;
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease;
(t) the Construction Agent shall have caused an appraisal Appraisal regarding each such Property evidencing an appraised amount equal to at least ninety percent (90%) of (i) the Property Cost to be funded by provided to the Lenders and Agent from an appraiser reasonably satisfactory to the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).Agent;
(u) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent; provided, that if such lien searches regarding the Lessee previously -------- have been conducted in any jurisdiction, the Construction Agent shall cause updates to such searches to be conducted in such jurisdictions;
(v) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made by Lessor to the reasonable satisfaction of the Agent;
(w) in the reasonable opinion of the Agent and (after consultation with its counsel), the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines;
(x) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements;
(y) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this Agreement) of the Parent and its Consolidated Subsidiaries, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement; (iii) each Operative Agreement to which the Lessee is a party is in full force and effect with respect to it; and (iv) the Lessee has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lessee, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D or in such other form as is reasonably acceptable to the Agent attaching and certifying as to (A) the resolutions of its Board of Directors duly authorizing the execution, delivery and performance by the Lessee of each of the Operative Agreements to which it is or will be a party, (B) its certificate of incorporation certified as of a recent date by the Secretary of State of its state of incorporation, (C) its by-laws and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee is incorporated and where the principal place of business of the Lessee is located as to its good standing in each such state;
(bb) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E or in such other form as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(cc) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in substantially the form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(dd) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit G or in such other form as is reasonably acceptable to the Agent; and
(ee) as of the Initial Closing Date only, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent.
Appears in 1 contract
Conditions Precedent for the Lessor. the AgentTHE AGENT, the Lenders and the Holders Relating to the Initial Closing Date and the Advance of Funds for the Acquisition of a PropertyTHE LENDERS ----------------------------------------------------------- AND THE HOLDERS RELATING TO THE ADVANCE OF FUNDS AFTER THE ---------------------------------------------------------- ACQUISITION ADVANCE. ------------------- The obligations (i) on the Initial Closing Date of the Lessor, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Lenders to make Loans in order connection with all requests for Advances subsequent to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(a) and 7.2 acquisition of this Agreement and (iii) on a Property Closing Date for the purpose of providing funds to the Lessor necessary (and to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(b) and 7.2 Section 7.1 of this Agreement and to acquire a Property (an “Acquisition Advance”), in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)connection therewith) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured PartiesAgent, in their its reasonable discretion; notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 5.4 which are required to be performed by such party):
(a) the correctness on such date of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and in each certificate delivered pursuant to any Operative Agreement on each such date(including without limitation the Incorporated Representations and Warranties);
(b) the performance by the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy of the Requisition, appropriately completed;
(d) [Intentionally Omitted]based upon the applicable Construction Budget which shall satisfy the requirements of this Agreement, the Available Commitments and the Available Holder Commitment (after deducting the Unfunded Amount) will be sufficient to complete the Improvements;
(e) the Construction Agent shall have delivered to the Agent a good standing certificate for the Construction Agent in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), and a copy of the Xxxx of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Construction Advance requested by each such the applicable Requisition;
(f) the title insurance policy delivered in connection with the requirements of Section 5.3
(g) shall provide for (or shall be endorsed to provide for) insurance in an amount at least equal to the maximum total Property Cost indicated by the Construction Agent Budget referred to in subparagraph (d) above and there shall have delivered to the Agent be no title insurance commitments to issue policies respecting each such Property, with such endorsements as are available that the Agent deems necessary, in favor of the Lessor and the Agent from a title insurance company acceptable to the Agent in its reasonable discretion, but only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,;
(h) the Construction Agent shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of loss;
(i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared (i) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and (ii) in a manner and including such information as is reasonably required by the Agent;
(j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit B change or in such other form as is reasonably acceptable to the Agent with respect to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable exception objectionable to the Agent;
(k) the Agent shall be satisfied that the acquisition and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition);
(m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form;
(n) the Lessee and the Lessor shall have delivered to the Agent with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such other form as is reasonably acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom;
(p) [Intentionally Omitted];
(q) [Intentionally Omitted];
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease;
(t) the Construction Agent shall have caused an appraisal regarding each such Property evidencing an appraised amount equal to at least ninety percent (90%) of (i) the Property Cost to be funded by the Lenders and the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).
(u) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent;
(v) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent;
(w) in the reasonable opinion of the Agent and its counsel, the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines;
(x) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements;
(y) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this Agreement) of the Parent and its Consolidated Subsidiaries, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement; (iii) each Operative Agreement to which the Lessee is a party is in full force and effect with respect to it; and (iv) the Lessee has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lessee, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D or in such other form as is reasonably acceptable to the Agent attaching and certifying as to (A) the resolutions of its Board of Directors duly authorizing the execution, delivery and performance by the Lessee of each of the Operative Agreements to which it is or will be a party, (B) its certificate of incorporation certified as of a recent date by the Secretary of State of its state of incorporation, (C) its by-laws and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee is incorporated and where the principal place of business of the Lessee is located as to its good standing in each such state;
(bb) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E or in such other form as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(cc) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in substantially the form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(dd) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit G or in such other form as is reasonably acceptable to the Agent; and
(ee) as of the Initial Closing Date only, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent.
Appears in 1 contract
Conditions Precedent for the Lessor. the Agent, the Lenders and the Holders Relating to the Initial Closing Date and the Advance of Funds for the Acquisition of a Property. The obligations (i) on the Initial Closing Date of the Lessor, the Trustee, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements Agreements, Bond Loan Documents and Bond Documents to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Lenders to make Loans in order to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(a) ), 7.3(a), 7.5 and 7.2 7.6 of this Agreement and (iii) on a Property Closing Date for the purpose of providing funds to the Lessor necessary to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections Section 7.1(b) and 7.2 or 7.3(a) of this Agreement and to acquire or ground lease a Property (an “"Acquisition Advance”"), in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured Parties, in their its reasonable discretion; notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 which are required to be performed by such party):
(a) the correctness of the representations and warranties (i) of the parties to this Agreement contained herein, in each of the other Operative Agreements and each certificate delivered pursuant to any Operative Agreement (including without limitation the Incorporated Representations and Warranties) (ii) of the Series 0000-X Xxxx Xxxxxxxxx in the Bond Loan Documents, and (iii) of the parties to the Bond Documents in each of the Bond Documents and each certificate delivered pursuant to any Bond Document, in each case, on each such date;
(b) the performance by (i) the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them them, (ii) the Series 0000-X Xxxx Xxxxxxxxx of its agreements contained in the Bond Loan Documents and (iii) the parties to the Bond Documents, including the Series 0000-X Xxxx Xxxxxxxxx, of their respective agreements contained therein, in each case, on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy of the Requisition, appropriately completed;
(d) [Intentionally Omitted]title to each such Property shall conform to the representations and warranties set forth in Section 6.2(l) hereof;
(e) the Construction Agent shall have delivered to the Agent a good standing certificate for the Construction Agent in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), a copy of the Ground Lease (if any), and a copy of the Xxxx of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired or ground leased on each such date with the proceeds of the Bonds or the Loans and Holder Advances or which have been previously acquired or ground leased with the proceeds of the Bonds or the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements Agreements, the Bond Loan Documents or the Bond Documents and no Default or Event of Default under any of the Operative Agreements Agreements, the Bond Loan Documents or the Bond Documents will have occurred after giving effect to the Advance requested by each such Requisition;
(g) the Construction Agent shall have delivered to the Agent title insurance commitments to issue policies respecting each such PropertyProperty in an amount at least equal to the maximum total Property Cost indicated by the Construction Budget referenced in Section 5.3(r), with such endorsements as are available that the Agent deems necessary, in favor of the Lessor and the Agent from a title insurance company acceptable to the Agent in its reasonable discretionAgent, but only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,Agent;
(h) the Construction Agent shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of loss;
(i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared by (i) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and (ii) in a manner and including such information as is reasonably required by the Agent;
(j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit B or in such other form as is reasonably acceptable to the Agent with respect to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable to the Agent;
(k) the Agent shall be satisfied that the acquisition acquisition, ground leasing and/or holding of each such Property and the execution of the Mortgage Instrument and Instrument, the other Security Documents, the Bond Loan Documents and the Bond Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), 7.1(b) or 7.2 7 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition)appropriate;
(m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), the Bond Security Documents (with respect to the Little Rock Property), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form;
(n) the Lessee and the Lessor shall have delivered to the Agent with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such other form as is reasonably acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom;
(p) [Intentionally Omitted]if any such Property is subject to a Ground Lease, the Construction Agent shall have caused a lease memorandum (or short form lease) to be delivered to the Agent for such Ground Lease and, if requested by the Agent, a landlord waiver and a mortgagee waiver (in each case, in such form as is acceptable to the Agent);
(q) [Intentionally Omitted]counsel (acceptable to the Agent) for the ground lessor of each such Property subject to a Ground Lease shall have issued to the Lessor, the Agent, the Lenders and the Holders, its opinion;
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease;
(t) the Construction Agent shall have caused an appraisal Appraisal regarding each such Property evidencing an appraised amount equal to at least ninety percent (90%) of (i) the Property Cost to be funded provided to the Agent from an appraiser selected by the Lenders Agent and the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or reasonably acceptable to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).Construction Agent;
(u) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent;
(v) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements Agreements, the Bond Loan Documents, the Bond Documents and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent;
(w) in the reasonable opinion of the Agent and its the Majority Secured Parties and their respective counsel, the transactions contemplated by the Operative Agreements Agreements, the Bond Loan Documents and the Bond Documents do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines;
(x) each of the Operative Agreements Agreements, the Bond Loan Documents and the Bond Documents to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements, the Bond Loan Documents and the Bond Documents;
(y) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this the Lessee Credit Agreement) of the Parent and its Consolidated SubsidiariesLessee, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have received an Officer’s 's Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee each Credit Party contained in the Operative Agreements and the Bond Documents to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee by any Credit Party has occurred and is continuing under any Operative Agreement, the Bond Loan Documents or the Bond Documents; (iii) each Operative Agreement and Bond Document to which the Lessee any Credit Party is a party is in full force and effect with respect to it; and (iv) the Lessee each Credit Party has duly performed and complied with all covenants, agreements and conditions contained herein herein, in any Operative Agreement or in any other Operative Agreement to which it is a party Bond Document required to be performed or complied with by it on or prior to the Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lesseeeach Credit Party, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D or in such other form as is reasonably acceptable to the Agent attaching and certifying as to (A1) the resolutions of its the Board of Directors of such Credit Party duly authorizing the execution, delivery and performance by the Lessee such Credit Party of each of the Operative Agreements and Bond Documents to which it is or will be a party, (B2) its certificate the articles of incorporation of such Credit Party certified as of a recent date by the Secretary of State of its state of incorporation, (C) incorporation and its by-laws and (D3) the incumbency and signature of persons authorized to execute and deliver on its behalf of such Credit Party the Operative Agreements and Bond Documents to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee such Credit Party is incorporated and where the principal place of business of the Lessee such Credit Party is located as to its good standing in each such state;
. To the extent any Credit Party is a partnership, a limited liability company or is otherwise organized, such Person shall deliver to the Agent (bbin form and substance satisfactory to the Agent) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E or in such other form as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(cc) as of the Initial Closing Date only, the Agent shall have received (iA) a certificate of regarding such Person and any corporate general partners covering the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company matters described in substantially the form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching D and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate, a certificate from the Office of limited partnership or a local equivalent of either of the Comptroller of the Currencyforegoing, as applicable;
(dd) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit G or in such other form as is reasonably acceptable to the Agent; and
(ee) as of the Initial Closing Date only, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent.
Appears in 1 contract
Conditions Precedent for the Lessor. the AgentTHE AGENT, the Lenders and the Holders Relating to the Initial Closing Date and the Advance of Funds for the Acquisition of a PropertyTHE LENDERS ----------------------------------------------------------- AND THE HOLDERS RELATING TO THE INITIAL CLOSING DATE AND THE ------------------------------------------------------------ ADVANCE OF FUNDS FOR THE ACQUISITION OF A PROPERTY. -------------------------------------------------- The obligations (i) on the Initial Closing Date of the Lessor, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Lenders to make Loans in order to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections Section 7.1(a) and 7.2 of this Agreement and (iii) on a Property Closing Date for the purpose of providing funds to the Lessor necessary to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections Section 7.1(b) and 7.2 of this Agreement and to acquire or ground lease a Property (an “"Acquisition Advance”"), in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured PartiesAgent, in their its reasonable discretion; notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 which are required to be performed by such party):
(a) the correctness of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and each certificate delivered pursuant to any Operative Agreement (including without limitation the Incorporated Representations and Warranties) on each such date;
(b) the performance by the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy of the Requisition, appropriately completed;
(d) [Intentionally Omitted]title to each such Property shall conform to the representations and warranties set forth in Section 6.2(l) hereof;
(e) the Construction Agent shall have delivered to the Agent a good standing certificate for the Construction Agent in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), a copy of the Ground Lease (if any), and a copy of the Xxxx Bill of Sale with respect to the Equipment (if any), respecting respxxxxng such of the foregoing as are being acquired or ground leased on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired or ground leased with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Advance requested by each such Requisition;
(g) the Construction Agent shall have delivered to the Agent title insurance commitments to issue policies respecting each such Property, with such endorsements as are available that the Agent deems necessary, in favor of the Lessor and the Agent from a title insurance company acceptable to the Agent in its reasonable discretionAgent, but only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,Agent;
(h) the Construction Agent shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of loss;
(i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared (i) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and (ii) in a manner and including such information as is reasonably required by the Agent;
(j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit EXHIBIT B or in such other form as is reasonably acceptable to the Agent with respect to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable to the Agent;
(k) the Agent shall be satisfied that the acquisition acquisition, ground leasing and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), ) or 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition)appropriate;
(m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form;
(n) the Lessee and the Lessor shall have delivered to the Agent with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit EXHIBIT B or in such other form as is reasonably acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom;
(p) [Intentionally Omitted]if any such Property is subject to a Ground Lease, the Construction Agent shall have caused a lease memorandum (or short form lease) to be delivered to the Agent for such Ground Lease and, if requested by the Agent, a landlord waiver and a mortgagee waiver (in each case, in such form as is acceptable to the Agent);
(q) [Intentionally Omitted]counsel (acceptable to the Agent) for the ground lessor of each such Property subject to a Ground Lease shall have issued to the Lessor, the Agent, the Lenders and the Holders, its opinion;
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Agent of insurance that is required to be maintained with respect to each such Property as provided in the Lease;
(t) the Construction Agent shall have caused an appraisal Appraisal regarding each such Property evidencing an appraised amount equal to at least ninety percent (90%) of (i) the Property Cost to be funded by provided to the Lenders and Agent from an appraiser satisfactory to the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”)Agent, and (ii) no Lender nor any Holder shall have provided the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about Agent written notice that such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).Appraisal is unsatisfactory;
(u) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent;
(v) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent, including without limitation the provisions of Section 5.14;
(w) in the reasonable opinion of the Agent and its respective counsel, the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines;
(x) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements;
(y) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this the Parent Credit Agreement) of the Parent and its Consolidated SubsidiariesGuarantor, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have received an Officer’s 's Certificate, dated as of the Initial Closing Date, of the Lessee and each other Credit Party in substantially the form attached hereto as Exhibit EXHIBIT C or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee such Credit Party contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement; (iii) each Operative Agreement to which the Lessee such Credit Party is a party is in full force and effect with respect to it; and (iv) the Lessee such Credit Party has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lesseeeach Credit Party, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit EXHIBIT D or in such other form as is reasonably acceptable to the Agent attaching and certifying as to (A1) the resolutions of its the Board of Directors of such Credit Party duly authorizing the execution, delivery and performance by the Lessee such Credit Party of each of the Operative Agreements to which it is or will be a party, (B2) its certificate the articles of incorporation of such Credit Party certified as of a recent date by the Secretary of State of its state of incorporation, (C) incorporation and its by-laws and (D3) the incumbency and signature of persons authorized to execute and deliver on its behalf of such Credit Party the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee such Credit Party is incorporated and where the principal place of business of the Lessee such Credit Party is located as to its good standing in each such state. To the extent any Credit Party is a partnership, a limited liability company or is otherwise organized, such Person shall deliver to the Agent (in form and substance satisfactory to the Agent) as of the Initial Closing Date (A) a certificate regarding such Person and any corporate general partners covering the matters described in EXHIBIT D and (B) a good standing certificate, a certificate of limited partnership or a local equivalent of either the foregoing as applicable;
(bb) as of the Initial Closing Date only, there shall not have occurred any material adverse change in the consolidated assets, liabilities, operations, business or condition (financial or otherwise) of the Credit Parties (on a consolidated basis) from that set forth in the most recent audited consolidated financial statements of the Guarantor which have been provided to the Agent;
(cc) as of the Initial Closing Date only, the Agent shall have received an Officer’s 's Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit EXHIBIT E or in such other form as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, it and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(ccdd) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in substantially the form attached hereto as Exhibit EXHIBIT F or in such other form as is acceptable to the Agent, attaching and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) documents and its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (DC) the incumbency and signature of persons authorized to execute and deliver deliver, on its behalf the Lessor's behalf, the Operative Agreements to which it such entity is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(ddee) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit EXHIBIT G or in such other form as is reasonably acceptable to the Agent; and;
(eeff) as of the Initial Closing Date only, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit EXHIBIT H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent;
(gg) as of the Initial Closing Date only, the Construction Agent shall cause (i) tax lien searches and judgment lien searches regarding each Credit Party to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as determined by the Agent by a nationally recognized search company acceptable to the Agent and (ii) the liens referenced in such lien searches which are objectionable to the Agent to be either removed or otherwise handled in a manner satisfactory to the Agent;
(hh) the Construction Agent shall have deposited good and immediately available Dollars into the Cash Collateral Account in a sufficient amount so that after giving effect to the requested Advance the Construction Agent is in compliance with Section 5.11 hereof;
(ii) except with respect to the Property ground leased on the Initial Closing Date, the Agent shall have received written approval regarding each subsequent Property, prior to the acquisition or ground leasing thereof by the Lessor, from each Lender and each Holder; and
(jj) the Lessee shall have complied with the provisions of Section 5.11 and the terms and conditions of the Cash Collateral Agreement and the Control Agreement.
Appears in 1 contract
Conditions Precedent for the Lessor. the Agent, the Lenders and the Holders Relating to the Initial Closing Date and the Advance of Funds for the Acquisition of a Property. The obligations (i) on the Initial Closing Date of the Lessor, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Lenders to make Loans in order to satisfy the Bridge Financing and to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections Section 7.1(a) and 7.2 of this Agreement and (iii) on a Property Closing Date for the purpose of providing funds to the Lessor necessary to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections Section 7.1(b) and 7.2 of this Agreement and to acquire or ground lease a Property (an “"Acquisition Advance”"), in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured PartiesAgent, in their its reasonable discretion; notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 which are required to be performed by such party):
(a) the correctness of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and each certificate delivered pursuant to any Operative Agreement on each such date;
(b) the performance by the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy of the Requisition, appropriately completed;
(d) [Intentionally Omitted]title to each such Property shall conform to the representations and warranties set forth in Section 6.2(l) hereof;
(e) the Construction Agent shall have delivered to the Agent a good standing certificate for the Construction Agent in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), a copy of the Ground Lease (if any), and a copy of the Xxxx of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired or ground leased on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired or ground leased with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or under the Lease, any Default under the Agency Agreement, any Lease Event of Default under or any Agency Agreement Event of the Operative Agreements Default and no Default under the Lease or under the Agency Agreement, no Lease Event of Default under any and no Agency Agreement Event of the Operative Agreements Default will have occurred after giving effect to the Advance requested by each such Requisition;
(g) the Construction Agent shall have delivered to the Agent title insurance commitments to issue policies respecting each such Property, with such endorsements as are available that the Agent deems necessary, in favor of the Lessor and the Agent from a title insurance company acceptable to the Agent in its reasonable discretionAgent, but only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,Agent;
(h) the Construction Agent shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of loss;
(i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared by (i) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and (ii) in a manner and including such information as is reasonably required by the Agent;
(j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit B or in such other form as is reasonably acceptable to the Agent with respect to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable to the Agent and a separate flood hazard certificate respecting each such Property prepared by an independent recognized professional acceptable to the Agent;
(k) the Agent shall be satisfied that the acquisition acquisition, ground leasing and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), ) or 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition)appropriate;
(m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form;
(n) the Lessee and the Lessor shall have delivered to the Agent with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such other form as is reasonably acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom;
(p) [Intentionally Omitted]if any such Property is subject to a Ground Lease, the Construction Agent shall have caused a lease memorandum (or short form lease) to be delivered to the Agent for such Ground Lease and, if requested by the Agent, a landlord waiver and a mortgagee waiver (in each case, in such form as is acceptable to the Agent);
(q) [Intentionally Omitted]counsel (acceptable to the Agent) for the ground lessor of each such Property subject to a Ground Lease shall have issued to the Lessor, the Agent, the Lenders and the Holders, its opinion;
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease;
(t) the Construction Agent shall have caused an appraisal Appraisal regarding each such Property evidencing (in an appraised amount equal to at least ninety percent (90%) of (i) the Property Cost reasonably anticipated by the Construction Agent and the Agent) to be funded provided to the Agent from an appraiser selected by the Lenders and the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).Agent;
(u) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent;
(v) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent;
(w) in the reasonable opinion of the Agent and its respective counsel, the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines;
(x) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements;
(y) since the date of the most recent audited consolidated financial statements (as such have been previously delivered pursuant to the requirements of this AgreementAgent) of the Parent and its Consolidated SubsidiariesLessee, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have received an Officer’s 's Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee each Credit Party contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement; (iii) each Operative Agreement to which the Lessee any Credit Party is a party is in full force and effect with respect to it; and (iv) the Lessee each Credit Party has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lesseeeach Credit Party, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D or in such other form as is reasonably acceptable to the Agent attaching and certifying as to (A1) the resolutions of its the Board of Directors of such Credit Party duly authorizing the execution, delivery and performance by the Lessee such Credit Party of each of the Operative Agreements to which it is or will be a party, (B2) its certificate the articles of incorporation of such Credit Party certified as of a recent date by the Secretary of State of its state of incorporation, (C) incorporation and its by-laws and (D3) the incumbency and signature of persons authorized to execute and deliver on its behalf of such Credit Party the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee such Credit Party is incorporated and where the principal place of business of the Lessee such Credit Party is located as to its good standing in each such state;
(bb) as of the Initial Closing Date only and in the reasonable judgment of the Agent, there shall not have occurred any material adverse change in the consolidated assets, liabilities, operations, business or condition (financial or otherwise) of the Credit Parties (on a consolidated basis) from that set forth in the most recent audited consolidated financial statements of the Credit Parties which have been provided to the Agent;
(cc) as of the Initial Closing Date only, the Agent shall have received an Officer’s 's Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E or in such other form as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, it and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(ccdd) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in substantially the form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) documents and its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (DC) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(ddee) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit G or in such other form as is reasonably acceptable to the Agent; and;
(eeff) as of the Initial Closing Date only, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent; and
(gg) as of the Initial Closing Date only, the Construction Agent shall cause (i) tax lien searches and judgment lien searches regarding each Credit Party to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as determined by the Agent by a nationally recognized search company acceptable to the Agent and (ii) the liens referenced in such lien searches which are objectionable to the Agent to be either removed or otherwise handled in a manner satisfactory to the Agent.
Appears in 1 contract
Conditions Precedent for the Lessor. the Agent, the Lenders and the Holders Relating to the Initial Closing Date and the Advance of Funds for after the Acquisition of a PropertyAdvance. The obligations (i) on the Initial Closing Date of the Lessor, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Lenders to make Loans in order connection with all requests for Advances subsequent to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(a) and 7.2 acquisition of this Agreement and (iii) on a Property Closing Date for the purpose of providing funds to the Lessor necessary (and to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(b) and 7.2 Section 7.1 of this Agreement and to acquire a Property (an “Acquisition Advance”), in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)connection therewith) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be precedent. (to To the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured PartiesAgent, in their its reasonable discretion; notwithstanding . Notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 5.4 which are required to be performed by such party.):
(a) the correctness (as to the Lessee, only in all material respects) on such date of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and in each certificate delivered pursuant to any Operative Agreement on each such date(including without limitation the Incorporated Representations and Warranties) as of the date given or made or deemed given or made;
(b) the performance by the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy of the Requisition, appropriately completed;
(d) [Intentionally Omitted]based upon the applicable Construction Budgets which shall satisfy the requirements of this Agreement, the Available Commitments and the Available Holder Commitment (after deducting the Unfunded Amount) will be sufficient to complete the Improvements;
(e) the Construction Agent shall have delivered to the Agent a good standing certificate for the Construction Agent in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), and a copy of the Xxxx of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Construction Advance requested by each such the applicable Requisition;
(f) the title insurance policy delivered in connection with the requirements of Section 5.3
(g) shall provide for (or shall be endorsed to provide for) insurance in an amount at least equal to the maximum total Property Cost indicated by the Construction Agent Budget referred to in subparagraph (d) above and there shall have delivered to the Agent be no title insurance commitments to issue policies respecting each such Property, with such endorsements as are available that the Agent deems necessary, in favor of the Lessor and the Agent from a title insurance company acceptable to the Agent in its reasonable discretion, but only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,;
(h) the Construction Agent shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of loss;
(i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared (i) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and (ii) in a manner and including such information as is change or exception reasonably required by the Agent;
(j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit B or in such other form as is reasonably acceptable to the Agent with respect to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable objectionable to the Agent;
(k) the Agent shall be satisfied that the acquisition and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition);
(m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form;
(n) the Lessee and the Lessor shall have delivered to the Agent with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such other form as is reasonably acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom;
(p) [Intentionally Omitted];
(q) [Intentionally Omitted];
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease;
(t) the Construction Agent shall have caused an appraisal regarding each such Property evidencing an appraised amount equal to at least ninety percent (90%) of (i) the Property Cost to be funded by the Lenders and the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).
(u) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent;
(v) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent;
(w) in the reasonable opinion of the Agent and its counsel, the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines;
(x) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements;
(y) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this Agreement) of the Parent and its Consolidated Subsidiaries, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement; (iii) each Operative Agreement to which the Lessee is a party is in full force and effect with respect to it; and (iv) the Lessee has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lessee, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D or in such other form as is reasonably acceptable to the Agent attaching and certifying as to (A) the resolutions of its Board of Directors duly authorizing the execution, delivery and performance by the Lessee of each of the Operative Agreements to which it is or will be a party, (B) its certificate of incorporation certified as of a recent date by the Secretary of State of its state of incorporation, (C) its by-laws and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee is incorporated and where the principal place of business of the Lessee is located as to its good standing in each such state;
(bb) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E or in such other form as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(cc) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in substantially the form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(dd) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit G or in such other form as is reasonably acceptable to the Agent; and
(ee) as of the Initial Closing Date only, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent.
Appears in 1 contract
Samples: Participation Agreement (Centennial Healthcare Corp)
Conditions Precedent for the Lessor. the Agent, the Lenders and the ------------------------------------------------------------------- Holders Relating to the Initial Closing Date and the Advance of Funds for the Acquisition of a PropertyClosing. The obligations -------------------------------
(i) on the Initial Closing Date of the Lessor, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, Date and (ii) on the Initial Closing Date of the Holders to make the Holder Advances, Advance and of the Lenders to make Loans in order to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(a) and 7.2 of this Agreement and (iii) on a Property Closing Date for the purpose of providing funds to the Lessor necessary to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(b) and 7.2 of this Agreement and to acquire a Property (an “Acquisition Advance”), in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)) Loan are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent Agent, the Lenders and the Majority Secured PartiesHolders, each in their its reasonable discretion; notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 which are required to be performed by such party):
(a) the correctness of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and each certificate delivered pursuant to any Operative Agreement on each such date;
(b) the performance by the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully the executed counterpart copy of the Requisition, appropriately completedClosing Notice;
(d) [Intentionally Omitted]title to each Property shall conform to the representations and warranties set forth in Section 6.2(l) hereof;
(e) the Construction Agent Lessee shall have delivered to the Agent a good standing certificate for the Construction Agent Lessee in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), and a copy of the Xxxx of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements or the Lessee Credit Agreement and no Default or Event of Default under any of the Operative Agreements or the Lessee Credit Agreement will have occurred after giving effect to the Advance requested by each such RequisitionClosing;
(g) the Construction Agent Lessee shall have delivered to the Agent title insurance commitments policies for the Properties in an aggregate amount greater than or equal to issue policies respecting each such Propertythe Advance and for the Lessee Collateral Properties, with such endorsements as are available that the Agent deems Agent, the Lenders and the Holders deem necessary, in favor of the Lessor and the Agent Agent, from a title insurance company acceptable to the Agent in its reasonable discretionAgent, but the Lenders and the Holders, with only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,Agent, the Lenders and the Holders;
(h) the Construction Agent Lessee shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to by the date presented Environmental Consultant, and in form and substance, acceptable to the Agent) by an independent recognized professional acceptable to , the Agent in its reasonable discretion, Lenders and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of lossthe Holders;
(i) the Construction Agent Lessee Credit Agreement shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared (i) by an independent recognized professional acceptable to the Agent be in its reasonable discretion, full force and (ii) in a manner and including such information as is reasonably required by the Agenteffect;
(j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent Lessee shall have caused to be delivered to the Agent a legal opinion substantially opinions addressed to, in the form attached hereto as Exhibit B or in such other form as is reasonably and substance acceptable to the Agent with respect to to, and from local law real property issues respecting the state in which each such Property is located addressed counsel acceptable to the Lessor, the Agent, the Lenders and the Holders, from counsel located covering the real property law of each state in the state where each such which a Property or a Lessee Collateral Property is located, located and a separate flood hazard certificate respecting each Property prepared by counsel reasonably an independent recognized professional acceptable to the Lessor, the Agent, the Lenders and the Holders;
(k) the Agent shall be satisfied that the acquisition and/or holding of each such Property and the execution of the Mortgage Instrument Instruments and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent Lessee shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition)Expenses;
(m) the Construction Agent and the Owner Trustee Lessee shall have caused to be delivered to the Agent a the Mortgage Instrument Instruments (each in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), the Lessor Financing Statements, the Lender Financing Statements and Lender Financing Statements the Termination and Release Documents respecting each such Property, all fully executed and in recordable formform suitable for recordation or filing, as appropriate, and all of them shall have been recorded or filed, as appropriate, with the applicable authorities;
(n) the Lessee and the Lessor shall have delivered to the Agent a Lease Supplement with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such each Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such other form as is reasonably acceptable to the --------- Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment Commitments plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will Commitments must be sufficient to pay in full all amounts payable therefromowed to the 1998 Holders and the 1998 Lenders under the 1998 Operative Agreements;
(p) [Intentionally Omittednot used];
(q) [Intentionally Omitted]the Lessee shall have provided the Agent with evidence of the insurance required to be maintained under the Lease and a broker's letter, each with respect to each Property and in form and substance acceptable to the Agent, the Lenders and the Holders;
(r) the Construction Agent Lessee shall have delivered caused an Appraisal regarding each Property to be provided to the Agent a preliminary Construction Budget for each such Propertyfrom the Appraiser, if applicablewhich Appraisal must be satisfactory in all respects to the Agent, the Lenders and the Holders;
(s) the Construction Agent shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease;
(t) the Construction Agent shall have caused an appraisal regarding each such Property evidencing an appraised amount equal to at least ninety percent (90%) of (i) the Property Cost to be funded by the Lenders and the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).
(u) the Construction Agent Lessee shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessor, the Lessee and the other Credit Parties to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent;
(vt) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent;
(wu) in the reasonable opinion of each of the Agent Lessor, the Lenders, the Agent, and its counselthe Holders, the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines;
(xv) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements;
(yw) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this the Lessee Credit Agreement) of the Parent and its Consolidated SubsidiariesLessee, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative Agreements;
(zx) as of the Initial Closing Date only, the Agent shall have received an Officer’s 's Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee each Credit Party contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement or the Lessee Credit Agreement; (iii) each Operative Agreement to which the Lessee any Credit Party is a party is in full force and effect with respect to it; and (iv) the Lessee each Credit Party has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(aay) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary secretary or an Assistant Secretary assistant secretary of the Lesseeeach Credit Party, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D or in such other form as is reasonably acceptable to the Agent attaching and certifying as to (A1) the resolutions of its Board the board of Directors directors of such Credit Party duly authorizing the execution, delivery and performance by the Lessee such Credit Party of each of the Operative Agreements to which it is or will be a party, (B2) its certificate the articles of incorporation of such Credit Party certified as of a recent date by the Secretary secretary of State state of its state of incorporation, (C) incorporation and its by-laws and (D3) the incumbency and signature of persons authorized to execute and deliver on its behalf of such Credit Party the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee such Credit Party is incorporated and where the principal place of business of the Lessee such Credit Party is located as to its good standing in each such state;
. To the extent any Credit Party is a partnership, a limited liability company or is otherwise organized, such Person shall deliver to the Agent (bbin form and substance satisfactory to the Agent, the Lenders and the Holders) as of the Initial Closing Date only(A) a certificate regarding such Person and any corporate general partners, in such form as is acceptable to the Agent and (B) a good standing certificate, a certificate of limited partnership or a local equivalent of either of the foregoing, as applicable;
(z) there shall not have occurred any material adverse change in the consolidated assets, liabilities, operations, business or condition (financial or otherwise) of the Credit Parties (on a consolidated basis) from that set forth in the most recent audited consolidated financial statements of the Credit Parties, which have been provided to the Agent;
(aa) the Agent shall have received an Officer’s 's Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E or in such other form as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, it and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(ccbb) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretarysecretary, an Assistant Secretary, Trust Officer trust officer or Vice President vice president of the Trust Company in substantially the form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) documents and its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (DC) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(ddcc) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent Lessor's Counsel shall have issued delivered to the Lessee, the HoldersAgent, the Lenders and the Agent Holders its opinion dated the Closing Date, addressed to such parties and as to such matters and in substantially the form attached hereto as Exhibit G or in and substance satisfactory to such other form as is reasonably acceptable to the Agent; andparties;
(eedd) as of the Initial Closing Date only, the Construction Agent Lessee's Counsel shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the HoldersHolders its opinion, from counsel reasonably acceptable dated the Closing Date, addressed to such parties and as to such matters (including the Agentenforceability of the applicable Operative Agreements as to each Credit Party) and in form and substance satisfactory to such parties; and
(ee) each of the Intercreditor Agreements shall have been duly authorized, executed and delivered by the parties thereto and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of them.
(ff) [not used]
Appears in 1 contract
Conditions Precedent for the Lessor. the Agent, the Lenders and the ------------------------------------------------------------------- Holders Relating to the Initial Closing Date and the Advance of Funds for the Acquisition of a PropertyDate. ------------------------------------- The obligations (i) on the Initial Closing Date of the Lessor, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Lenders to make Loans in order to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(a) and 7.2 of this Agreement and (iii) on a Property Closing Date for the purpose of providing funds to the Lessor necessary to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(b) and 7.2 of this Agreement and to acquire a Property (an “Acquisition Advance”), in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured PartiesAgent, in their its reasonable discretionjudgment; notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 which are required to be performed by such party):
(a) the correctness of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and each certificate delivered pursuant to any Operative Agreement (including without limitation the Incorporated Representations and Warranties) on each such date;
(b) the performance by the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy of the Requisition, appropriately completed[Reserved];
(d) [Intentionally Omitted]title to each Property shall conform to the representations and warranties set forth in Section 6.2(l) hereof;
(e) the Construction Agent Lessee shall have delivered to the Agent a good standing certificate for the Construction Agent Lessee in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), and a copy of the Xxxx of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Advance requested by each such Requisitionoccurred;
(g) the Construction Agent shall have delivered to the Agent title insurance commitments to issue policies respecting each such Property, with such endorsements as are available that the Agent deems necessary, in favor of the Lessor and the Agent from a title insurance company acceptable to the Agent in its reasonable discretion, but only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,[Reserved];
(h) the Construction Agent shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of loss[Reserved];
(i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared (i) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and (ii) in a manner and including such information as is reasonably required by the Agent[Reserved];
(j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit B or in such other form as is reasonably acceptable to the Agent with respect to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable to the Agent[Reserved];
(k) the Agent shall be satisfied that the acquisition and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements[Reserved];
(l) the Construction Agent shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition)[Reserved];
(m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form[Reserved];
(n) the Lessee and the Lessor shall have delivered to the Agent with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such other form as is reasonably acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording)[Reserved];
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom[Reserved];
(p) [Intentionally OmittedReserved];
(q) [Intentionally OmittedReserved];
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable[Reserved];
(s) [Reserved];
(t) the Construction Agent Lessee shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease;
(tu) the Construction Agent Lessee shall have caused an appraisal Appraisal regarding each Property to be provided to the Agent from an appraiser reasonably satisfactory to the Agent until such Property evidencing time as Appraisals for Properties then subject to the Lease have been submitted to the Agent and evidence an appraised amount equal to aggregate value of all such Properties of at least ninety percent the Base Amount;
(90%) of (iv) the Property Cost to be funded by the Lenders and the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).
(u) the Construction Agent Lessee shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent;
(vw) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent;
(wx) in the reasonable opinion of the Agent and its respective counsel, the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines;
(xy) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements;
(yz) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this Agreement) of the Parent and its Consolidated Subsidiaries, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative Agreements[Reserved];
(zaa) as of the Initial Closing Date only, the Agent shall have received an Officer’s 's Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C D --------- or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee each Credit Party contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement; and (iii) each Operative Agreement to which the Lessee any Credit Party is a party is in full force and effect with respect to it; and (iv) the Lessee has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(aabb) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lesseeeach Credit Party, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D E or in such other form as is --------- reasonably acceptable to the Agent attaching and certifying as to (A1) the resolutions of its the Board of Directors of such Credit Party duly authorizing the execution, delivery and performance by the Lessee such Credit Party of each of the Operative Agreements to which it is or will be a party, (B2) its certificate the articles of incorporation of such Credit Party certified as of a recent date by the Secretary of State of its state of incorporation, (C) incorporation and its by-laws and (D3) the incumbency and signature of persons authorized to execute and deliver on its behalf of such Credit Party the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee such Credit Party is incorporated and where the principal place of business of the Lessee such Credit Party is located as to its good standing in each such state;
state (bbto the extent any Credit Party is a partnership, a limited liability company or is otherwise organized, such Credit Party shall deliver to the Agent (in form and substance reasonably satisfactory to the Agent) as of the Initial Closing Date only(A) a certificate regarding such Credit Party and any corporate general partners covering the matters described in EXHIBIT E and (B) a good --------- standing certificate, a certificate of limited partnership or a local equivalent of either of the foregoing, as applicable);
(cc) the Agent shall have received an Officer’s 's Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E ------- F or in such other form as is reasonably acceptable to the Agent, stating - that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, it and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(ccdd) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in substantially the form attached hereto as Exhibit F G or in such other form as --------- is reasonably acceptable to the Agent, attaching and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) documents and its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (DC) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(ddee) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit G H or in such other form as --------- is reasonably acceptable to the Agent; and;
(eeff) as of the Initial Closing Date only, the Construction Agent Lessee shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent; and
(gg) the Lessee shall cause (i) tax lien searches and judgment lien searches regarding each Credit Party to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as determined by the Agent by a nationally recognized search company acceptable to the Agent and (ii) the liens referenced in such lien searches which are objectionable to the Agent to be either removed or otherwise handled in a manner satisfactory to the Agent; provided this Section 5.3(ff) shall not be interpreted to limit -------- or to contradict the requirements of Section 5.3(u).
Appears in 1 contract
Conditions Precedent for the Lessor. the Agent, the Lenders and the Holders Relating to the Initial Closing Date and the Advance of Funds for after the Acquisition of a PropertyAdvance. The obligations (i) on the Initial Closing Date of the Lessor, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Lenders to make Loans in order connection with all requests for Advances subsequent to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(a) and 7.2 acquisition of this Agreement and (iii) on a Property Closing Date for the purpose of providing funds to the Lessor necessary (and to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(b) and 7.2 Section 7.1 of this Agreement and to acquire a Property (an “Acquisition Advance”), in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)connection therewith) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured PartiesAgent, in their its reasonable discretion; notwithstanding . Notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 5.4 which are required to be performed by such party):
(a) the correctness on such date of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and in each certificate delivered pursuant to any Operative Agreement on each such dateAgreement;
(b) the performance by the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy of the Requisition, appropriately completed;
(d) [Intentionally Omitted]based upon the applicable Construction Budget which shall satisfy the requirements of this Agreement, the Available Commitments and the Available Holder Commitment (after deducting the Unfunded Amount) will be sufficient to complete the Improvements;
(e) the Construction Agent shall have delivered to the Agent a good standing certificate for the Construction Agent in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), and a copy of the Xxxx of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Construction Advance requested by each such the applicable Requisition;
(f) the title insurance policy delivered in connection with the requirements of Section 5.3
(g) shall provide for (or shall be endorsed to provide for) insurance in an amount at least equal to the maximum total Property Cost indicated by the Construction Agent Budget referred to in subparagraph (d) above and there shall have delivered to the Agent be no title insurance commitments to issue policies respecting each such Property, with such endorsements as are available that the Agent deems necessary, in favor of the Lessor and the Agent from a title insurance company acceptable to the Agent in its reasonable discretion, but only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,;
(h) the Construction Agent shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of loss;
(i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared (i) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and (ii) in a manner and including such information as is reasonably required by the Agent;
(j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit B change or in such other form as is reasonably acceptable to the Agent with respect to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable exception objectionable to the Agent;
(k) the Agent shall be satisfied that the acquisition and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition);
(m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form;
(n) the Lessee and the Lessor shall have delivered to the Agent with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such other form as is reasonably acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom;
(p) [Intentionally Omitted];
(q) [Intentionally Omitted];
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease;
(t) the Construction Agent shall have caused an appraisal regarding each such Property evidencing an appraised amount equal to at least ninety percent (90%) of (i) the Property Cost to be funded by the Lenders and the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).
(u) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent;
(v) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent;
(w) in the reasonable opinion of the Agent and its counsel, the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines;
(x) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements;
(y) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this Agreement) of the Parent and its Consolidated Subsidiaries, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement; (iii) each Operative Agreement to which the Lessee is a party is in full force and effect with respect to it; and (iv) the Lessee has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lessee, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D or in such other form as is reasonably acceptable to the Agent attaching and certifying as to (A) the resolutions of its Board of Directors duly authorizing the execution, delivery and performance by the Lessee of each of the Operative Agreements to which it is or will be a party, (B) its certificate of incorporation certified as of a recent date by the Secretary of State of its state of incorporation, (C) its by-laws and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee is incorporated and where the principal place of business of the Lessee is located as to its good standing in each such state;
(bb) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E or in such other form as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(cc) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in substantially the form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(dd) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit G or in such other form as is reasonably acceptable to the Agent; and
(ee) as of the Initial Closing Date only, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent.
Appears in 1 contract
Conditions Precedent for the Lessor. the AgentTHE LESSEE, the Lenders and the Holders Relating to the Initial Closing Date and the Advance of Funds for the Acquisition of a PropertyTHE CONSTRUCTION AGENT, THE AGENT, THE LENDERS AND THE HOLDERS RELATING TO THE INITIAL CLOSING DATE AND THE ADVANCE OF FUNDS FOR THE ACQUISITION OF A PROPERTY. The obligations (i) on the Initial Closing Date of the Lessor, the Lessee, the Construction Agent, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Lenders to make Loans in order to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections Section 7.1(a) and 7.2 of this Agreement and (iii) on a Property Closing Date for the purpose of providing funds to the Lessor necessary to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections Section 7.1(b) and 7.2 of this Agreement and to acquire or ground lease a Property (an “"Acquisition Advance”"), in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured PartiesAgent, in their its reasonable discretion; notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 which are required to be performed by such party):
(a) the correctness of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and each certificate delivered pursuant to any Operative Agreement on each such date;
(b) the performance by the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy of the Requisition, appropriately completed, and to the extent requested by the Agent, the Construction Inspector shall have reviewed and approved the same;
(d) [Intentionally Omitted]title to each such Property shall conform to the representations and warranties set forth in Section 6.2(l) hereof;
(e) the Construction Agent shall have delivered to the Agent a good standing certificate for the Construction Agent in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), a copy of the Ground Lease (if any), and a copy of the Xxxx of Bill xx Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired or ground leased on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired or ground leased with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements which has not been waived by the applicable Financing Parties, as the case may be, and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Advance requested by each such Requisition;
(g) the Construction Agent shall have delivered to the Agent title insurance commitments to issue policies respecting each such Property, with such endorsements as are available that the Agent deems necessary, Property in favor of the Lessor and the Agent from a title insurance company acceptable to the Agent in its reasonable discretionAgent, but only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,Agent;
(h) the Construction Agent shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of lossAgent;
(i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared (i) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and (ii) in a manner and including such information as is reasonably required by the Agent;
(j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit EXHIBIT B or in such other form as is reasonably acceptable to the Agent with respect to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable to the Agent;
(k) the Agent shall be satisfied that the acquisition and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition);
(m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form;
(n) the Lessee and the Lessor shall have delivered to the Agent with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such other form as is reasonably acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom;
(p) [Intentionally Omitted];
(q) [Intentionally Omitted];
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease;
(t) the Construction Agent shall have caused an appraisal regarding each such Property evidencing an appraised amount equal to at least ninety percent (90%) of (i) the Property Cost to be funded by the Lenders and the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).
(u) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent;
(v) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent;
(w) in the reasonable opinion of the Agent and its counsel, the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines;
(x) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements;
(y) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this Agreement) of the Parent and its Consolidated Subsidiaries, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement; (iii) each Operative Agreement to which the Lessee is a party is in full force and effect with respect to it; and (iv) the Lessee has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lessee, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D or in such other form as is reasonably acceptable to the Agent attaching and certifying as to (A) the resolutions of its Board of Directors duly authorizing the execution, delivery and performance by the Lessee of each of the Operative Agreements to which it is or will be a party, (B) its certificate of incorporation certified as of a recent date by the Secretary of State of its state of incorporation, (C) its by-laws and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee is incorporated and where the principal place of business of the Lessee is located as to its good standing in each such state;
(bb) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E or in such other form as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(cc) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in substantially the form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(dd) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit G or in such other form as is reasonably acceptable to the Agent; and
(ee) as of the Initial Closing Date only, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent.
Appears in 1 contract
Samples: Participation Agreement (Guilford Pharmaceuticals Inc)
Conditions Precedent for the Lessor. the Agent, the Lenders and the Holders Relating to the Initial Closing Date and the Advance of Funds for the Acquisition of a Property. The obligations (i) on the Initial Closing Date of the Lessor, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Lenders to make Loans in order to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections Section 7.1(a) and 7.2 of this Agreement and (iii) on a Property Closing Date of the Holder to make Holder Advances and of the Lenders to make Loans for the purpose of providing funds to the Lessor necessary to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections Section 7.1(b) and 7.2 of this Agreement and to acquire or ground lease a Property (an “"Acquisition Advance”"), in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured PartiesAgent, in their its reasonable discretion; notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 which are required to be performed by such party):
(a) the correctness (as to the Lessee, only in all material respects) of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and each certificate delivered pursuant to any Operative Agreement (including without limitation the Incorporated Representations and Warranties) on each such date;
(b) the performance by the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy of the Requisition, appropriately completed;
(d) [Intentionally Omitted]title to each such Property shall conform to the representations and warranties set forth in Section 6.2(l) hereof;
(e) the Construction Agent shall have delivered to the Agent a good standing certificate for the Construction Agent in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), a copy of the Ground Lease (if any), and a copy of the Xxxx of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired or ground leased on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired or ground leased with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Advance requested by each such Requisition;
(g) the Construction Agent shall have delivered to the Agent title insurance commitments to issue policies respecting each such Property, with such endorsements as are available that the Agent deems necessary, Property in favor of the Lessor (as fee simple owner of each such Property, and the Construction Agent shall use all commercially reasonable efforts to obtain a special endorsement (to the extent such special endorsement does not exceed $500 in cost) providing that in the event the Lease respecting any such Property is ever deemed to be a mortgage, such policy insures the interests of the Lessor as a mortgagee) and the Agent from a title insurance company acceptable to the Agent in its reasonable discretionAgent, but only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,Agent;
(h) the Construction Agent shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of lossAgent;
(i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared (i) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and (ii) in a manner and including such information as is reasonably required by the Agent;
(j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit B or in such other form (excluding zoning, permits or similar land use, development or construction laws) as is reasonably acceptable to the Agent with respect to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable to the Agent and a separate flood hazard certificate respecting each such Property prepared by an independent recognized professional acceptable to the Agent;
(k) the Agent shall be satisfied that the acquisition acquisition, ground leasing and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Agent copies of invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), ) or 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition)appropriate;
(m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form;
(n) the Lessee and the Lessor shall have delivered to the Agent (or the escrow agent in connection with an Escrowed Closing) with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such other form as is reasonably acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom;
(p) [Intentionally Omitted]if any such Property is subject to a Ground Lease, the Construction Agent shall have caused a lease memorandum (or short form lease) to be delivered to the Agent (or the escrow agent in connection with an Escrowed Closing) for such Ground Lease and, if requested by the Agent, a landlord waiver and a mortgagee waiver (in each case, in such form as is reasonably acceptable to the Agent);
(q) [Intentionally Omitted]counsel (acceptable to the Agent) for the ground lessor of each such Property subject to a Ground Lease shall have issued to the Lessor, the Agent, the Lenders and the Holders, its opinion;
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease;
(t) subject to Section 8.3(e) of this Agreement, the Construction Agent shall have caused an appraisal Appraisal regarding each such Property evidencing an appraised amount equal to at least ninety percent (90%) of (i) the Property Cost to be funded provided to the Agent from an appraiser selected by the Lenders and the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).Agent;
(u) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent;
(v) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent;
(w) in the reasonable opinion of the Agent and its counsel, the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or finesviolation of Law;
(x) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements;
(y) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this the Lessee Credit Agreement) of the Parent and its Consolidated SubsidiariesLessee, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect; provided, other than as specifically contemplated by the foregoing shall not prevent the Lessee from exercising rights expressly granted to the Lessee pursuant to the provisions of the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have received an Officer’s 's Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee each Credit Party contained in the Operative Agreements to which it is a party is true and correct in all material respects on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement; (iii) each Operative Agreement to which the Lessee any Credit Party is a party is in full force and effect with respect to it; and (iv) the Lessee each Credit Party has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lesseeeach Credit Party, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D or in such other form as is reasonably acceptable to the Agent attaching and certifying as to (A1) the resolutions of its the Board of Directors of such Credit Party duly authorizing the execution, delivery and performance by the Lessee such Credit Party of each of the Operative Agreements to which it is or will be a party, (B2) its certificate the articles of incorporation of such Credit Party certified as of a recent date by the Secretary of State of its state of incorporation, (C) incorporation and its by-laws and (D3) the incumbency and signature of persons authorized to execute and deliver on its behalf of such Credit Party the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee such Credit Party is incorporated and where the principal place of business of the Lessee such Credit Party is located as to its good standing in each such state. To the extent any Credit Party is a partnership, a limited liability company or is otherwise organized, such Person shall deliver to the Agent (in form and substance satisfactory to the Agent) as of the Initial Closing Date (A) a certificate regarding such Person and any corporate general partners covering the matters described in Exhibit D and (B) a good standing certificate, a certificate of limited partnership or a local equivalent of either of the foregoing, as applicable;
(bb) as of the Initial Closing Date only, there shall not have occurred any materially adverse change in the business, financial condition, assets or property of the Lessee and its Subsidiaries taken as a whole as a result of any event, condition, circumstance or contingency from that set forth in the most recent audited consolidated financial statements of the Credit Parties which have been provided to the Agent;
(cc) as of the Initial Closing Date only, the Agent shall have received an Officer’s 's Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E or in such other form as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct in all material respects on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, it and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(ccdd) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in substantially the form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) documents and its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (DC) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(ddee) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit G or in such other form as is reasonably acceptable to the Agent; and;
(eeff) as of the Initial Closing Date only, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent; and
(gg) as of the Initial Closing Date only, the Construction Agent shall cause (i) tax lien searches and judgment lien searches regarding each Credit Party to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as determined by the Agent by a nationally recognized search company acceptable to the Agent and (ii) the liens referenced in such lien searches which are objectionable to the Agent to be either removed or otherwise handled in a manner satisfactory to the Agent.
Appears in 1 contract
Samples: Participation Agreement (Centennial Healthcare Corp)
Conditions Precedent for the Lessor. the AgentTHE AGENT, the Lenders and the Holders Relating to the Initial Closing Date and the Advance of Funds for the Acquisition of a PropertyTHE LENDERS AND THE -------------------------------------------------------------------- HOLDERS RELATING TO THE INITIAL CLOSING DATE AND THE ADVANCE OF FUNDS --------------------------------------------------------------------- FOR THE ACQUISITION OF A PROPERTY. --------------------------------- The obligations (i) on the Initial Closing Date of the Lessor, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Lenders to make Loans in order to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections Section 7.1(a) and 7.2 of this Agreement and (iii) on a Property Closing Date for the purpose of providing funds to the Lessor necessary to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections Section 7.1(b) and 7.2 of this Agreement and to acquire or ground lease a Property (an “"Acquisition Advance”"), ------------------- in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured PartiesAgent, in their its reasonable discretion; notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 which are required to be performed by such party):
(a) the correctness of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and each certificate delivered pursuant to any Operative Agreement (including without limitation the Incorporated Representations and Warranties) on each such date;
(b) the performance by the parties to this Agreement of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date;
(c) the Agent shall have received a fully executed counterpart copy of the Requisition, appropriately completed;
(d) [Intentionally Omitted]title to each such Property shall conform to the representations and warranties set forth in Section 6.2(l) hereof;
(e) the Construction Agent shall have delivered to the Agent a good standing certificate for the Construction Agent in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), a copy of the Ground Lease (if any), and a copy of the Xxxx of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired or ground leased on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired or ground leased with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Advance requested by each such Requisition;
(g) the Construction Agent shall have delivered to the Agent title insurance commitments to issue policies respecting each such Property, with such endorsements as are available that the Agent deems necessary, in favor of the Lessor and the Agent from a title insurance company acceptable to the Agent in its reasonable discretionAgent, but only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,Agent;
(h) the Construction Agent shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of loss;
(i) the Construction Agent shall have delivered to the Agent a survey (with a flood hazard certification) respecting each such Property prepared by (i) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and (ii) in a manner and including such information as is reasonably required by the Agent;
(j) unless such an opinion has previously been delivered with respect to a particular state, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit B or in such other form as is reasonably acceptable to the Agent with respect --------- to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable to the Agent and a separate flood hazard certificate respecting each such Property prepared by an independent recognized professional acceptable to the Agent;
(k) the Agent shall be satisfied that the acquisition acquisition, ground leasing and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), ) or 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition)appropriate;
(m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form;
(n) the Lessee and the Lessor shall have delivered to the Agent with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such other form as is reasonably --------- acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording); and if any such Property is subject to a Ground Lease, the Construction Agent shall have caused a lease memorandum (or short form lease) to be delivered to the Agent for such Ground Lease and, if requested by the Agent, a landlord waiver and a mortgagee waiver (in each case, in such form as is acceptable to the Agent);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom;
(p) [Intentionally Omitted];
(q) [Intentionally Omitted];
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable;
(sq) the Construction Agent shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease;
(tr) the Construction Agent shall have caused an appraisal Appraisal regarding each such Property evidencing to be provided to the Agent from an appraised amount appraiser selected by the Agent, which Appraisal must show each such Property to have a value equal to at least or greater than ninety and 90/100 percent (9090.90%) of (i) its Property Cost or its Budgeted Total Property Cost, as applicable; in other words, the Property Cost to be funded by the Lenders and the Holders for each such Property shall not exceed 110% of its value as shown on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).related Appraisal;
(us) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent;
(vt) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent;
(wu) in the reasonable opinion of the Agent and its counsel, the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines;
(xv) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements;
(yw) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this the Lessee Credit Agreement) of the Parent and its Consolidated SubsidiariesLessee, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative AgreementsAgreements ;
(zx) as of the Initial Closing Date only, the Agent shall have received an Officer’s 's Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C or in such other form --------- as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee each Credit Party contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement; (iii) each Operative Agreement to which the Lessee any Credit Party is a party is in full force and effect with respect to it; and (iv) the Lessee each Credit Party has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(aay) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lesseeeach Credit Party, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D or in such other form as is reasonably acceptable to the --------- Agent attaching and certifying as to (A1) the resolutions of its the Board of Directors of such Credit Party duly authorizing the execution, delivery and performance by the Lessee such Credit Party of each of the Operative Agreements to which it is or will be a party, (B2) its certificate the articles of incorporation of such Credit Party certified as of a recent date by the Secretary of State of its state of incorporation, (C) incorporation and its by-laws and (D3) the incumbency and signature of persons authorized to execute and deliver on its behalf of such Credit Party the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee such Credit Party is incorporated and where the principal place of business of the Lessee such Credit Party is located as to its good standing in each such state. To the extent any Credit Party is a partnership, a limited liability company or is otherwise organized, such Person shall deliver to the Agent (in form and substance satisfactory to the Agent) as of the Initial Closing Date (A) a certificate regarding such Person and any corporate general partners covering the matters described in Exhibit D and (B) a good --------- standing certificate, a certificate of limited partnership or a local equivalent of either of the foregoing, as applicable;
(bbz) as of the Initial Closing Date only, there shall not have occurred any material adverse change in the consolidated assets, liabilities, operations, business or condition (financial or otherwise) of the Credit Parties (on a consolidated basis) from that set forth in the most recent audited consolidated financial statements of the Credit Parties which have been provided to the Agent;
(aa) as of the Initial Closing Date only, the Agent shall have received an Officer’s 's Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E or in such other form --------- as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, it and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(ccbb) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in substantially the form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching --------- and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) documents and its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (DC) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(ddcc) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit G --------- or in such other form as is reasonably acceptable to the Agent; and;
(eedd) as of the Initial Closing Date only, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the --------- Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent;
(ee) as of the Initial Closing Date only, the Construction Agent shall cause (i) tax lien searches and judgment lien searches regarding each Credit Party to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as determined by the Agent by a nationally recognized search company acceptable to the Agent and (ii) the liens referenced in such lien searches which are objectionable to the Agent to be either removed or otherwise handled in a manner satisfactory to the Agent; and
(ff) counsel (acceptable to the Agent) for the ground lessor of each such Property subject to a Ground Lease shall have issued to the Lessor, the Agent, the Lenders and the Holders, its opinion.
Appears in 1 contract
Conditions Precedent for the Lessor. the Agent, the Lenders Agent and the Holders Tranche -------------------------------------------------------------- B Lenders Relating to the Initial Closing Date and the Advance of Funds for after the ---------------------------------------------------- Acquisition of a PropertyAdvance. ------------------- The obligations (i) on the Initial Closing Date of the LessorAgent to make Construction Advances from the Escrow Account, the Agent, the Lenders and the Holders to enter into the transactions contemplated by this Agreement, including without limitation the obligation to execute and deliver the applicable Operative Agreements to which each is a party on the Initial Closing Date, (ii) on the Initial Closing Date of the Holders to make Holder Advances, and of the Tranche B Lenders to make Tranche B Loans in order to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(a) and 7.2 of this Agreement and (iii) on a Property Closing Date connection with all requests for the purpose of providing funds Advances for Project Costs subsequent to the Lessor necessary acquisition of the Property (and to pay the Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Sections 7.1(b) and 7.2 Section 7 of this Agreement and to acquire a Property (an “Acquisition Advance”), in each case (with regard to the foregoing Sections 5.3(i), (ii) and (iii)connection therewith) are subject to the satisfaction or waiver of the following conditions precedent on or prior to the Initial Closing Date or the applicable Property Closing Date, as the case may be (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance satisfactory to the Agent and the Majority Secured PartiesAgent, in their its reasonable discretion; notwithstanding the foregoing, the obligations of each party shall not be subject to any conditions contained in this Section 5.3 5.4 which are required to be performed by such party):
(a) the correctness in all material respects on such date of the representations and warranties of the parties to this Agreement contained herein, in each of the other Operative Agreements and in each certificate delivered pursuant to any Operative Agreement on each Agreement, except to the extent any such representation or warranty relates to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects as of such earlier date;
(b) the performance by the parties to this Agreement Credit Parties of their respective agreements contained herein and in the other Operative Agreements to be performed by them on or prior to each such date;
(c) the Agent and the Primary Financing Parties shall have received a fully executed counterpart copy of the Requisition, appropriately completed;
(d) [Intentionally Omitted]based upon the applicable Construction Budget which shall satisfy the requirements of this Agreement, the sum of the Available Tranche B Lender Commitments plus the balance of funds in the Escrow Account will be sufficient to complete the Improvements;
(e) the Construction Agent shall have delivered to the Agent a good standing certificate for the Construction Agent in the state where each such Property is located, the Deed with respect to the Land and existing Improvements (if any), and a copy of the Xxxx of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired on each such date with the proceeds of the Loans and Holder Advances or which have been previously acquired with the proceeds of the Loans and Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Lease Default or Lease Event of Default under any of the Operative Agreements and no Default or Event of Default under by Lessor shall have occurred and been continuing for sixty (60) days or more, and no Lease Default or Lease Event of Default or any Event of the Operative Agreements Default by Lessor will have occurred as a result of and after giving effect to the Construction Advance requested by each the applicable Requisition;
(f) the title insurance policies delivered in connection with the requirements of Section 5.3(g) shall provide for (or shall be endorsed to provide for) insurance in an amount at least equal to the maximum total Property Cost indicated by the applicable Construction Budget referred to in subparagraph (d) above (divided between such Requisitionpolicy in favor of the Tranche A Note Purchasers and the other policy in favor of the Tranche B Lenders based on the percentages for Advances as set forth in Section 5.2(c)) and there shall be no title change or exception reasonably objectionable to the Agent;
(g) the Construction Agent shall have delivered to the Agent title insurance commitments to issue policies respecting each such Property, with such endorsements as are available that the Agent deems necessary, in favor of the Lessor and the Agent from a title insurance company acceptable to the Agent in its reasonable discretion, but only with such title exceptions thereto as are acceptable to the Agent in its reasonable discretion,[Reserved];
(h) the Construction Agent shall have delivered to the Agent an environmental site assessment respecting each such Property prepared (no earlier than six months prior to the date presented to the Agent) by an independent recognized professional acceptable to the Agent in its reasonable discretion, and evidencing no pre-existing environmental condition with respect to which there is more than a remote risk of loss[Reserved];
(i) the Construction Agent shall have delivered delivered, or caused to be delivered, to the Agent a survey (with a flood hazard certification) respecting each such Property prepared (i) Agent, Bills of Sale or other documents reasonably requested by an independent recognized professional acceptable to the Agent in its reasonable discretionorder to perfect the interest of the Lessor, and (ii) in a manner and including such information as is reasonably required by each case with regard to any Equipment or other components of the Agent;Property then being acquired with the proceeds of the Loans; and
(j) unless such an opinion has previously been delivered with respect subject to a particular stateSection 8.12, the Construction Agent shall have caused to be delivered to the Agent a legal opinion substantially in the form attached hereto as Exhibit B or in such other form as is reasonably acceptable to the Agent with respect to local law real property issues respecting the state in which each such Property is located addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located, prepared by counsel reasonably acceptable to the Agent;
(k) the Agent shall be satisfied that the acquisition and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Agent invoices from the Lessee, Construction Agent, Agent, Owner Trustee or others, as the case may be, for, or other reasonably satisfactory evidence to support payment of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 7.1(a), 7.1(b) or 7.2 of this Agreement, as appropriate (and as agreed between the Construction Agent and the Agent regarding the initial Requisition);
(m) the Construction Agent and the Owner Trustee shall have caused to be delivered to the Agent a Mortgage Instrument (in such form as is acceptable to the Agent, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form;
(n) the Lessee and the Lessor shall have delivered to the Agent with respect to each such Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be in substantially the form attached to the Lease as Exhibit B or in such other form as is reasonably acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to pay all amounts payable therefrom;
(p) [Intentionally Omitted];
(q) [Intentionally Omitted];
(r) the Construction Agent shall have delivered to the Agent a preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Agent of insurance with respect to each such Property as provided in the Lease;
(t) the Construction Agent shall have caused an appraisal regarding each such Property evidencing an appraised amount equal to at least ninety percent (90%) of (i) the Property Cost to be funded by the Lenders and the Holders on the Property Closing Date for the Property located in or near Southlake, Texas, including without limitation approximately 25 acres of land and the existing office building of approximately 400,000 square feet and parking garage located thereon (collectively, the “Constructed Property”), and (ii) the anticipated Property Cost for the other Property located in or near Southlake, Texas, including the Land, Improvements and Equipment on or about such Property, or to be constructed and/or obtained in connection therewith, including without limitation approximately 156 acres of Land and the to-be-constructed office building of approximately 500,000 square feet to be located thereon (collectively, the “Undeveloped Property”).
(u) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Agent) in such jurisdictions as reasonably determined by the Agent by a nationally recognized search company reasonably acceptable to the Agent and (ii) the liens referenced in such lien searches which are not permitted pursuant to the terms of the Operative Agreements and which are objectionable to the Agent to be either removed or otherwise handled in a manner reasonably satisfactory to the Agent;
(v) all taxes, fees and other charges in connection with the execution, delivery, recording, filing and registration of the Operative Agreements and/or documents related thereto shall have been paid or provisions for such payment shall have been made to the reasonable satisfaction of the Agent;
(w) in the reasonable opinion of the Agent and its counsel, the transactions contemplated by the Operative Agreements do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines;
(x) each of the Operative Agreements to be entered into on such date shall have been duly authorized, executed and delivered by the parties thereto, and shall be in full force and effect, and the Agent shall have received a fully executed copy of each of the Operative Agreements;
(y) since the date of the most recent audited consolidated financial statements (as delivered pursuant to the requirements of this Agreement) of the Parent and its Consolidated Subsidiaries, there shall not have occurred any event, condition or state of facts which shall have or could reasonably be expected to have a Material Adverse Effect, other than as specifically contemplated by the Operative Agreements;
(z) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate, dated as of the Initial Closing Date, of the Lessee in substantially the form attached hereto as Exhibit C or in such other form as is reasonably acceptable to the Agent stating that (i) each and every representation and warranty of the Lessee contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date; (ii) no Default or Event of Default with respect to the Lessee has occurred and is continuing under any Operative Agreement; (iii) each Operative Agreement to which the Lessee is a party is in full force and effect with respect to it; and (iv) the Lessee has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(aa) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary or an Assistant Secretary of the Lessee, dated as of the Initial Closing Date, in substantially the form attached hereto as Exhibit D or in such other form as is reasonably acceptable to the Agent attaching and certifying as to (A) the resolutions of its Board of Directors duly authorizing the execution, delivery and performance by the Lessee of each of the Operative Agreements to which it is or will be a party, (B) its certificate of incorporation certified as of a recent date by the Secretary of State of its state of incorporation, (C) its by-laws and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is or will be a party and (ii) a good standing certificate (or local equivalent) from the appropriate office of the respective states where the Lessee is incorporated and where the principal place of business of the Lessee is located as to its good standing in each such state;
(bb) as of the Initial Closing Date only, the Agent shall have received an Officer’s Certificate of the Lessor dated as of the Initial Closing Date in substantially the form attached hereto as Exhibit E or in such other form as is reasonably acceptable to the Agent, stating that (i) each and every representation and warranty of the Lessor contained in the Operative Agreements to which it is a party is true and correct on and as of the Initial Closing Date, (ii) each Operative Agreement to which the Lessor is a party is in full force and effect with respect to it, and (iii) the Lessor has duly performed and complied with all covenants, agreements and conditions contained herein or in any other Operative Agreement to which it is a party required to be performed or complied with by it on or prior to the Initial Closing Date;
(cc) as of the Initial Closing Date only, the Agent shall have received (i) a certificate of the Secretary, an Assistant Secretary, Trust Officer or Vice President of the Trust Company in substantially the form attached hereto as Exhibit F or in such other form as is acceptable to the Agent, attaching and certifying as to (A) the signing resolutions duly authorizing the execution, delivery and performance by the Lessor of each of the Operative Agreements to which it is or will be a party, (B) its articles of association or other equivalent charter documents, (C) its by-laws, as the case may be, certified as of a recent date by an appropriate officer of the Trust Company and (D) the incumbency and signature of persons authorized to execute and deliver on its behalf the Operative Agreements to which it is a party and (ii) a good standing certificate from the Office of the Comptroller of the Currency;
(dd) as of the Initial Closing Date only, counsel for the Lessor reasonably acceptable to the Agent shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion in substantially the form attached hereto as Exhibit G or in such other form as is reasonably acceptable to the Agent; and
(ee) as of the Initial Closing Date only, the Construction Agent shall have caused to be delivered to the Agent a legal opinion in substantially the form attached hereto as Exhibit H or in such other form as is reasonably acceptable to the Agent, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel reasonably acceptable to the Agent.
Appears in 1 contract
Samples: Participation Agreement (Capital One Financial Corp)