Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request. (b) Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee shall instead be paid directly to the Agent or as the Agent may direct from time to time and (ii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is delivered, or is required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each Holder. (c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, in each case, obtaining the prior written consent of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j). (d) [Intentionally Omitted] (e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative Agreements, any and all payment obligations owing from time to time under the Operative Agreements to the Agent, any Lender or any Holder shall (without further action) be deemed to be Supplemental Rent obligations payable by Lessee and guaranteed by the Guarantor. Without limitation, such obligations shall include commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements. (f) Consistent with the terms and conditions of the Security Agreement, each of the Construction Agent and Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make available to the Agent (on behalf of Lessor) any and all personal property components of any and all Properties.
Appears in 2 contracts
Samples: Participation Agreement (Capital One Financial Corp), Participation Agreement (Capital One Financial Corp)
Credit Party Covenants, Consent and Acknowledgment. Until all the Obligations of the Lessee and/or the Construction Agent (other than contingent obligations not then due) have been paid and satisfied in full in cash and the covenants terminated, each Credit Party agrees as follows:
(a) Each Credit Party acknowledges and agrees that the Owner TrusteeLessor, pursuant to the terms and conditions of the Security Agreement and the Mortgage InstrumentsDocuments, shall create Liens respecting the various personal property, fixtures and real property collateral described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection accordance with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably requestSection 12.11 hereof.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Credit Loans, the Mortgage Loans and the Lessor Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments Documents have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to the Lessor or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to the Lessor or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease (except in respect of Excepted Payments and as provided in Section 12.4) shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, to which it is a party except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]From and after the Rent Commencement Date, the Lessee hereby covenants and agrees to reimburse the Agent for any Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting the Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, any Mortgage Lender and/or any Credit Lender and (ii) after the occurrence and continuance of a Lease Event of Default. To the extent any such Appraisal or reappraisal is deemed necessary by the Agent prior to the Rent Commencement Date, such shall be paid for as a Transaction Expense.
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Financing Party or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the GuarantorGuarantors, which is subject to the funding requirements described in this Agreement prior to the Rent Commencement Date. Without limitation, such obligations of the Credit Parties shall include commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative AgreementsTransaction Expenses.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security AgreementProperty or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble the Equipment and make the same available to the Agent (on behalf of the Lessor) at the Improvements.
(g) Each of the Construction Agent and the Lessee hereby covenants and agrees that (i) each Indemnified Person will, at all times, be covered to the extent so provided in Article XIV of the Lease, as additional insured or loss payee, as the case may be, under the insurance policies required to be maintained by the Construction Agent or the Lessee pursuant to Section 2.6(e) of the Agency Agreement and Article XIV of the Lease, or pursuant to the insurance policies that the Construction Agent or the Lessee requires any relevant contractor or subcontractor to carry, for any Claim arising out of the acts or omissions of any of the contractors or subcontractors of the Construction Agent or the Lessee and (ii) each insurance policy that is carried by the Construction Agent or the Lessee pursuant to the Agency Agreement or the Lease (A) shall at all times contain a waiver of subrogation clause pursuant to which the relevant insurers waive any and all personal rights to make any claim against any such additional insured or loss payee with respect to any payments made, or any obligation of such insureds under, any such policy and (B) shall at all times cover each such additional insured or loss payee for any and all Claims relating to the Property or the transactions contemplated by the Operative Agreements respecting the Property. The Construction Agent and the Lessee will be liable to each such additional insured or loss payee, on a full recourse basis, for any breach of the foregoing covenants and agreements.
(h) [Reserved].
(i) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the location of the Lessee for purposes of the UCC shall cease to be in the State of Delaware or if the Lessee’s principal place of business, chief executive office or office where the records concerning the account or contract rights relating to the Property are kept shall cease to be located at 0000 Xxx Xxxxx Xxxxxxxxxx, Santa Clara, California 95050 or if it shall change its name.
(j) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement and under the Lease shall not impair or in any way diminish the obligations of the Construction Agent and/or the rights of the Lessor under the Agency Agreement.
(k) [Reserved].
(l) The Lessee shall cause all financing statements and continuation statements and any other necessary documents covering the right, title and interest of the Agent as agent for the Secured Parties with regard to the Collateral to be promptly produced, to be submitted to the Agent for review and after confirmation thereof by the Agent, to be filed for recordation in such manner and in such places as may be required by law fully to preserve and protect the right, title and interest of the Agent as agent for the Secured Parties hereunder to all property components comprising the Collateral. The Lessee shall deliver to the Agent file-stamped copies of, or filing receipts for, any document recorded, registered or filed as provided above, promptly following such recording, registration or filing. The Lessor shall cooperate fully with the Lessee in connection with the obligations of the Lessee set forth above and will execute or cause the execution (at the expense of the Lessee, which the Lessee agrees to pay) of any and all Propertiesdocuments commercially reasonably required to fulfill the intent of this Section 8.3(l).
(m) The Lessee shall perform any and all obligations of Lessor under, and cause Lessor to otherwise remain in full compliance with, the terms and provisions of each Ground Lease, if any.
(n) The Credit Parties shall not permit the Lessee to issue any Equity Interests unless such Equity Interests are pledged in favor of the Agent pursuant to the Pledge Agreement and the certificate evidencing such Equity Interests is delivered to the Agent with a blank membership interest power, all pursuant to documentation satisfactory to the Agent, in its commercially reasonable discretion.
(o) With regard to the Amended and Restated Operating Agreement of NVIDIA Land Development, LLC, dated as of June 2, 2009, as amended by that certain First Amendment to the Amended and Restated Operating Agreement dated as of June 16, 2015, each of the foregoing by the Parent, as the sole member of the Lessee, the Credit Parties shall not permit any amendment, modification, extension, supplement, restatement and/or replacement of such Agreement or such First Amendment, in each case to the extent relating to such First Amendment and/or the subject matter thereof, without the consent of the Agent, to be given or withheld, in its commercially reasonable discretion.
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future further instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantorother Credit Parties. Without limitation, such obligations of the Credit Parties shall include commitment without limitation arrangement fees, administrative fees, unused fees, prepayment penaltiesbreakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(fe) Consistent with the terms and conditions of the Security Agreement, each of the Construction Agent and The Lessee hereby covenants and agrees, at its own cost agrees to cause an Appraisal for each Property to be issued and expense, to assemble and make available delivered to the Agent as of the applicable Property Closing Date (or, with respect to either of the Properties identified on behalf Exhibit N hereto, within forty-five (45) days after the Property Closing Date for the applicable Property) until such time as the aggregate appraised value (pursuant to such Appraisals) of Properties then subject to the Lease Agreement equals or exceeds an amount equal to one-half (1/2) of the then current Commitment (the "Minimum Appraisal Level"). To the extent the appraised value (pursuant to such Appraisals) of Properties then subject to the Lease Agreement at any time or from time to time is below the Minimum Appraisal Level, the Lessee further covenants and agrees to cause Appraisals and/or reappraisals to be issued and delivered to the Agent respecting Properties then subject to the Lease Agreement to re-establish the Minimum Appraisal Level within thirty (30) days. In addition, the Lessee covenants and agrees to cause an Appraisal or reappraisal to be issued respecting each Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder, (ii) any after the occurrence and all personal property components during the continuation of any an Event of Default and all Properties.(iii) as required pursuant to Section 5.13 of this Agreement and Section 20.1
Appears in 1 contract
Samples: Participation Agreement (Centennial Healthcare Corp)
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans Loan and the Holder Advance are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent (until such time as the Loan is paid in full, and then by the Majority Holders) and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each Holderthe Holders.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party Guarantor hereby covenants and agrees that, that except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the GuarantorGuarantors. Without limitation, such Such obligations of the Guarantors shall include commitment without limitation Arrangement Fees, administrative fees, unused fees, prepayment penaltiesPrepayment Fees, indemnities, trustee fees and transaction expenses Transaction Expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(e) The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent, the Lenders and the Holders and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) after each occurrence of an Event of Default.
(f) Consistent The Lessee hereby covenants and agrees that, except for amounts payable as Basic Rent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender, any Holder or any other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee. Without limitation, such obligations of the Lessee shall include the Supplemental Rent obligations pursuant to Section 3.3 of the Lease, Arrangement Fees, administrative fees, Prepayment Fees, indemnities, trustee fees and Transaction Expenses incurred by the parties hereto in connection with the terms and conditions transactions contemplated by the Operative Agreements.
(g) At any time the Lessor or the Agent is entitled under the Operative Agreements to possession of a Property or any component thereof, the Security Agreement, each of the Construction Agent and Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(h) [not used]
(i) The Lessee hereby covenants and agrees that each Property is and shall continue to be a Permitted Facility.
(j) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000, if it shall change its name or if it shall cease to be a registered organization organized under the laws of the State of Delaware.
(k) [not used]
(l) Until all the obligations of the Credit Parties under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Term has expired or been earlier terminated, the Lessee will furnish or cause to be furnished to each Holder, each Lender and the Agent at their respective addresses set forth or referenced in Section 12.2 of this Agreement, or such other office as may be designated by any such Holder, Lender or the Agent from time to time: (i) not later than forty-five (45) days after the end of each fiscal quarter, a certificate duly signed by the chief executive officer or the chief financial officer of Lessee setting forth the Adjusted Leverage Ratio for the period of four (4) consecutive fiscal quarters ending with such quarter-end and setting forth the computations employed in calculating the ratio (the "Margin Certificate") and (ii) at each time financial statements ------------------ are delivered or to be delivered pursuant to Article XXVIII of the Lease, a compliance certificate duly executed by the chief financial officer of the Lessee substantially in the form of Exhibit M attached hereto (the "Officer's --------- --------- Compliance Certificate"). ----------------------
(m) [not used]
(n) Each Credit Party hereby covenants and agrees to cause each Domestic Subsidiary formed or acquired by it after the Closing Date to execute a Joinder Agreement and to satisfy the terms of Sections 5.8(a)-(d) of this Agreement, all within thirty (30) days of the formation or acquisition of such Domestic Subsidiary.
(o) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when such Credit Party gains such knowledge.
(p) Until all of the obligations under the Operative Agreements have been finally and indefeasibly paid and satisfied in full unless consent has been obtained from the Majority Secured Parties, each Credit Party will:
(i) except as permitted by the express provisions of the Lessee Credit Agreement, preserve and maintain its separate legal existence and all personal property components rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation (or partnership, limited liability company or other such similar entity, as the case may be) and authorized to do business in each jurisdiction in which the failure to do so qualify would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative Agreements and pay and perform (A) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property, and (B) all Propertiesother indebtedness, obligations and liabilities in accordance with customary trade practices, which if not paid would have a Material Adverse Effect; provided that any Credit Party may contest any item -------- described in this Section 8.3(p)(ii) in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP;
(iii) to the extent failure to do so would have a Material Adverse Effect, observe and remain in compliance with all applicable Laws and maintain in full force and effect all Governmental Actions, in each case applicable to the conduct of its business; keep in full force and effect all licenses, certifications or accreditations necessary for any Property to carry on its business; and
(iv) provided that the Agent, the Lenders and the Holders use reasonable efforts to minimize disruption to the business of the Credit Parties, permit representatives of the Agent or any Lender or Holder, from time to time, to visit and inspect its properties; inspect, audit and make extracts from its books, records and files, including without limitation management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects.
(q) The Lessee shall, at its own expense, do or otherwise cause to be done each of the post-closing matters listed on Schedule 8.3(q) hereto as soon as practicable but in any event within 90 days of the Closing Date.
(r) [not used]
(s) [not used]
(t) [not used]
(u) [not used]
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such LiensLiens until such liens are subject to release in accordance with this Agreement and the other Operative Agreements. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person entitled thereto) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person entitled thereto) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is delivered, or is required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each Holder.all
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as reasonably requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lendor and/or any Holder and (ii) after the occurrence of an Event of Default.
(e) Each Credit Party The Lessee hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee in accordance with the terms and guaranteed by conditions of this Agreement and the Guarantorother Operative Agreements. Without limitation, such obligations of the Lessee shall include the Supplement Rent obligations pursuant to Section 3.3 of the Lease, arrangement fees, administrative fees, participation fees, commitment fees, unused fees, prepayment penalties, breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(g) any The Lessee hereby covenants and all personal property components agrees that, respecting each Property, Non-Integral Equipment financed under the Operative Agreements may constitute up to, but shall not exceed, ten percent (10%) of any the aggregate Advances extended at or prior to such time with respect to such Property.
(h) The Lessee hereby covenants and all Propertiesagrees that as of Completion (i) the aggregate Property Cost shall not exceed $72,000,000 and (ii) each parcel of the Property shall be a Permitted Facility.
(i) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any
Appears in 1 contract
Samples: Participation Agreement (Veritas Software Corp /De/)
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the AgentBank. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to any other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent Bank (excluding Excepted Payments which shall be payable to any other Person as appropriate) or as the Agent Bank may direct from time to time for allocation in accordance with Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Bank and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderBank.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Bank or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantor. Without limitation, such obligations shall include commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreementsother Credit Parties.
(fe) Consistent with At any time the terms and conditions Lessor or the Bank is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent Bank (on behalf of the Lessor).
(f) The Lessee hereby covenants and agrees that Advances for items other than Land and Improvements respecting any individual parcel of Property shall at no time constitute in excess of ten percent (10%) of the aggregate Advances respecting such parcel of Property funded at such time under the Operative Agreements.
(g) The Lessee hereby covenants and agrees that it shall give prompt notice to the Bank if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at 500 Volvo Parkway, Chesapeakx, Xxxxxxxx 00000 xx xx xx xxxxx xxxxxx xxx xxxe.
(h) Each Credit Party shall promptly notify the Bank, or cause the Bank to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Bank within ten (10) days of when such Credit Party gains such knowledge.
(i) Lessee shall take all action that Lessee deems necessary to assure that Lessee's computer based systems are able to operate and effectively process data including dates on and after January 1, 2000.
(j) Lessee shall perform any and all personal property components obligations of any Lessor under, and cause Lessor to otherwise remain in full compliance with, the terms and provisions of each Ground Lease, if any.
(k) Until all Propertiesthe obligations of the Credit Parties under the Operative Agreements have been finally and indefeasibly paid and satisfied in full, the Commitments and the Holder Commitments terminated and the Term has expired or been earlier terminated, the Lessee will furnish or cause to be furnished to Bank at the address set forth or referenced in Section 12.2 of this Agreement, or such other office as may be designated by Bank from time to time: (i) not later than forty-five (45) days after the end of each fiscal quarter, a certificate duly signed by the chief executive officer, chief operating officer, chief financial officer, treasurer or controller of DTS setting forth the ratio of Consolidated Funded Debt to Consolidated EBITDA for the period of four (4) consecutive fiscal quarters ending with such quarter-end and setting forth the computations employed in calculating the ratio (the "Margin Certificate") and (ii) at each time financial statements are delivered or to be delivered pursuant to Section 8.3(m) hereof or Section 28.1 of the Lease, a compliance certificate duly executed by the president, treasurer, chief financial offer or controller of DTS substantially in the form of Exhibit M attached hereto (the "Officer's Compliance Certificate").
(l) Each Credit Party hereby covenants and agrees to cause each Domestic Subsidiary formed or acquired after the Initial Closing Date to execute a Joinder Agreement and to observe the terms of Sections 5.9(a)-(d) of this Agreement, all within thirty (30) days of the formation or acquisition of such Domestic Subsidiary.
(m) The Lessee hereby covenants and agrees to provide (i) no later than one hundred twenty (120) days after the fiscal year end of DTS, the consolidated, audited and unqualified financial statements of DTS, as prepared in accordance with GAAP by an independent certified public accountant acceptable to the Bank and (ii) no later than 45 days after the end of each fiscal quarter of DTS, quarterly management-prepared consolidated financial statements of DTS, including a balance sheet, a profit and loss statement and a statement of changes in cash flow.
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agenttherein. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent in accordance with the terms of the Intercreditor Agreement and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time by any Credit Party under the Operative Agreements Lease by any Person to the AgentLessor, the Agent (whether as assignee of Lessor or otherwise), any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantorother Credit Parties. Without limitation, such obligations of the Credit Parties shall include commitment without limitation arrangement fees, administrative fees, unused fees, prepayment penaltiesbreakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative AgreementsLease.
(e) The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) after the occurrence and continue of an Event of Default and for so long as the same is continuing.
(f) Consistent The Lessee hereby covenants and agrees that, except for amounts payable as Basic Rent, any and all payment obligations owing from time to time under the Lease by any Person to the Lessor, the Agent (whether as assignee of Lessor or otherwise), any Lender, any Holder or any other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee. Without limitation, such obligations of the Lessee shall include the Supplemental Rent obligations pursuant to this Section 8.3(f), Section 3.3 of the Lease, arrangement fees, administrative fees, participation fees, commitment fees, prepayment penalties, breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the terms transactions contemplated by the Lease.
(g) At any time the Lessor or the Agent is entitled under the Operative Agreements to possession of a Property or any component thereof, and conditions of the Security Agreement, each of the Construction Agent and Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(h) [Intentionally Reserved].
(i) [Intentionally Reserved].
(j) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at 0000 X. Xxxxxxxxx Xxx., Xxxxxxxxxxxx, XX 00000 or if it shall change its name or jurisdiction of incorporation.
(k) [Intentionally Reserved].
(l) [Intentionally Reserved].
(m) [Intentionally Reserved].
(n) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when such Credit Party gains such knowledge.
(o) Until all of the obligations under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Lender Commitments and the Holder Commitments terminated unless consent has been obtained pursuant to the Intercreditor Agreement, each Credit Party will:
(i) except as permitted by the express provisions of the Lessee Credit Agreement, preserve and maintain its separate legal existence and all personal property components rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation (or partnership, limited liability company or other such similar entity, as the case may be) and authorized to do business in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative Agreements and pay and perform (A) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property, and (B) all other indebtedness, obligations and liabilities in accordance with customary trade practices, which if not paid would have a Material Adverse Effect; provided that any Credit Party may contest any item described in this Section 8.3(p)(ii) in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP;
(iii) to the extent failure to do so would have a Material Adverse Effect, observe and remain in compliance with all applicable Laws and maintain in full force and effect all Governmental Actions, in each case applicable to the conduct of its business; keep in full force and effect all licenses, certifications or accreditations necessary for any Property to carry on its business; and not permit the termination of any insurance reimbursement program available to any Property; and
(iv) provided that the Agent, the Lenders and all the Holders use reasonable efforts to minimize disruption to the business of the Credit Parties, permit representatives of the Agent or any Lender or Holder, from time to time, to visit and inspect its Properties; inspect, audit and make extracts from its books, records and files, including without limitation management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects.
Appears in 1 contract
Samples: Participation Agreement (Pep Boys Manny Moe & Jack)
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Financing Party shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]Each Lessee that has executed a Lease Supplement with respect to any Property hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance reasonably satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder; (ii) after the occurrence of an Event of Default; and (iii) at any time when the Agent shall not have Appraisals respecting Properties then subject to the transactions contemplated by the Operative Agreements equal to at least twenty percent (20%) of the sum of the Commitments and the Holder Commitments.
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person relating to a particular Property to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee that has executed a Lease Supplement with respect to such Property and guaranteed by the Guarantor. Without limitation, such obligations of the Credit Parties shall include the Supplemental Rent obligations pursuant to this Section 8.3(e), Section 3.3 of the Lease, arrangement fees, administrative fees, participation fees, commitment fees, unused facility fees, prepayment penalties, breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee that has executed a Lease Supplement with respect to such Property hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(g) The Lessee that has executed a Lease Supplement with respect to any Property hereby covenants and agrees that Equipment respecting any individual parcel of Property shall at no time constitute in excess of fifteen percent (15%) of the aggregate Advances respecting such parcel of Property funded at such time under the Operative Agreements.
(h) Each Credit Party hereby covenants and agrees that as of Completion (i) the Property Cost for each individual parcel of the Property shall be (A) no less than $3,000,000 and (B) no more than $60,000,000 and (ii) each parcel of the Property shall be a Permitted Facility.
(i) The Guarantor hereby covenants and agrees that it shall give prompt notice to the Agent if any Credit Party's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, or if any Credit Party's name, shall change.
(j) Unless the Agent otherwise agrees in writing, the Lessee hereby covenants and agrees that the aggregate Property Cost of Properties purchased for any reason by any Lessee prior to the Expiration Date shall not exceed ten percent (10%) of the aggregate Property Cost for all Properties funded during the Commitment Period.
(k) [Reserved].
(l) Each Credit Party hereby covenants and agrees that the rights of the Lessees under this Agreement and the Lease shall not impair or in any way diminish the obligations of the Construction Agents and/or the rights of the Lessor under the Agency Agreement.
(m) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when such Credit Party gains such knowledge.
(n) Until all of the obligations under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Commitments and the Holder Commitments terminated unless consent has been obtained from the Majority Secured Parties, each Credit Party will:
(i) except as permitted by the express provisions of the Lessee Credit Agreement, preserve and maintain its separate legal existence and all rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation (or partnership, limited liability company or other such similar entity, as the case may be) and authorized to do business in each jurisdiction in which the failure to do so qualify would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative Agreements and pay and perform (A) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property, and (B) all other indebtedness, obligations and liabilities in accordance with customary trade practices, which if not paid would have a Material Adverse Effect; provided that any Credit Party may contest any item described in this Section 8.3(n)(ii) in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP;
(iii) to the extent failure to do so would have a Material Adverse Effect, observe and remain in compliance with all applicable Laws and maintain in full force and effect all Governmental Actions, in each case applicable to the conduct of its business; and keep in full force and effect all licenses, certifications or accreditations necessary for any Facility to carry on its business; and
(iv) provided that the Agent, the Lenders and the Holders use reasonable efforts to minimize disruption to the business of the Lessee, permit representatives of the Agent or any Lender or Holder, from time to time, to visit and inspect its properties; inspect, audit and make extracts from its books, records and files, including without limitation management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects.
(o) [Reserved].
(p) The Lessee that has executed a Lease Supplement with respect to any Property shall perform any and all personal property components obligations of Lessor under, and cause Lessor to otherwise remain in full compliance with, the terms and provisions of each Ground Lease, if any.
(q) Promptly after obtaining any and all Propertiesrequired architectural approvals by any business park or any other applicable entity with oversight responsibility for the applicable Improvements, the Construction Agent shall deliver to the Agent copies of the same.
(r) Prior to the Expiration Date or any earlier termination of the Holder Commitments, the Lender Commitments and/or any of the Operative Agreements, the Credit Parties shall cause Advances to have been made in an amount equal to no less than forty percent (40%) of the sum of the aggregate Holder Commitments (as of the Initial Closing Date or as such may be increased from time to time) plus the aggregate Lender Commitments (as of the Initial Closing Date or as much may be increased from time to time).
Appears in 1 contract
Samples: Participation Agreement (Performance Food Group Co)
Credit Party Covenants, Consent and Acknowledgment. The Credit Parties, jointly and severally, covenant and agree that until Payment in Full, the Credit Parties shall comply at all times with the following covenants:
(a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection accordance with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably requestSection 12.11 hereof.
(b) Each Lessor Party hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans Lessor Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments Documents have been released (i) any and all Rent (excluding Excepted CHAR1\1917164v13 Payments which shall be payable to the Lessor Party or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable by any Credit Party to any Lessor Party (including pursuant to Section 5.3(c) of the Lessor or Agency Agreement and Section 17.6(c) of the Owner Trustee Lease) shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to the Lessor Party or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor Parties under the Lease (except in respect of Excepted Payments and as provided in Section 12.4) shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessorany Lessor Party, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]From and after the Rent Commencement Date, the Lessee hereby covenants and agrees to reimburse the Agent for any Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting the Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent and/or any Lessor Party and (ii) after the occurrence and continuance of an Event of Default. To the extent any such Appraisal or reappraisal is deemed necessary by the Agent prior to the Rent Commencement Date, such shall be paid for as a Transaction Expense.
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Financing Party or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the GuarantorGuarantors, which is subject to the funding requirements described in this Agreement prior to the Rent Commencement Date. Without limitation, such obligations of the Credit Parties shall include commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative AgreementsTransaction Expenses.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security AgreementProperty or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble the Equipment and make the same available to the Agent (on behalf of the Lessor) at the Property.
(g) Each of the Construction Agent and the Lessee hereby covenants and agrees that
(i) each Indemnified Person will, at all times, be covered to the extent so provided in Article XIV of the Lease, as additional insured or loss payee, as the case may be, under the insurance policies required to be maintained by the Construction Agent or the Lessee pursuant to Section 2.6(e) of the Agency Agreement and Article XIV of the Lease, or pursuant to the insurance policies that the Construction Agent or the Lessee requires any relevant contractor or subcontractor to carry, for any Claim arising out of the acts or omissions of any of the contractors or subcontractors of the Construction Agent or the Lessee and (ii) each insurance policy that is carried by the Construction Agent or the Lessee pursuant to the Agency Agreement or the Lease (A) shall at all times contain a waiver of subrogation clause pursuant to which the relevant insurers waive any and all personal rights to make any claim against any such additional insured or loss payee with respect to any payments made, or any obligation of such insureds under, any such policy and (B) shall at all times cover each such additional insured or loss payee for any and all Claims relating to the Property or the CHAR1\1917164v13 transactions contemplated by the Operative Agreements. The Construction Agent and the Lessee will be liable to each such additional insured or loss payee, on a full recourse basis, for any breach of the foregoing covenants and agreements.
(h) The Lessee hereby covenants and agrees that as of the Completion, the Property shall be the Permitted Facility.
(i) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the location of the Lessee for purposes of the UCC shall cease to be in the State of Ohio, if the Lessee’s principal place of business shall cease to be located at 0000 X. Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx Xxxxxx, XX 00000 or if the Lessee’s chief executive office or office where the records concerning the account or contract rights relating to the Property are kept shall cease to be located at 0000 X. Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx Xxxxxx, XX 00000 or if it shall change its name. The Lessee shall at all times maintain a mailing address at: AVDC, LLC, c/o Big Lots, Inc., 0000 X. Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, XX 00000.
(j) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement and under the Lease shall not impair or in any way diminish the obligations of the Construction Agent and/or the rights of the Lessor under the Agency Agreement.
(k) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon a Responsible Officer of such Credit Party gaining knowledge of the occurrence of any Default or Event of Default (whether material or not) which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when such Credit Party gains such knowledge.
(l) The Lessee shall cause all financing statements and continuation statements and any other necessary documents covering the right, title and interest of the Agent as agent for the Secured Parties with regard to the Collateral to be promptly produced, to be submitted to the Agent for review and after confirmation thereof by the Agent, to be filed for recordation in such manner and in such places as may be required by law fully to preserve and protect the right, title and interest of the Agent as agent for the Secured Parties hereunder to all property components comprising the Collateral. The Lessee shall deliver to the Agent file-stamped copies of, or filing receipts for, any document recorded, registered or filed as provided above, as soon as available following such recording, registration or filing. The Lessor shall cooperate fully with the Lessee in connection with the obligations of the Lessee set forth above and will execute or cause the execution (at the expense of the Lessee, which the Lessee agrees to pay) of any and all Propertiesdocuments reasonably required to fulfill the intent of this Section 8.3(l).
(m) Each Credit Party acknowledges and agrees that such Credit Party shall at no time be an EEA Financial Institution.
(n) The Lessee covenants and agrees to deliver to the Agent, on or before the Commencement Date, the Lease and a memorandum thereof (or short form lease) (such memorandum or short form lease to be in the form attached to the Lease as Exhibit B or in such other form as is acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording).
(o) In addition to, and not in limitation of, the requirements of Article XIV of the Lease, Lessee will maintain insurance against loss or damage which to the Lessee’s knowledge is similar to the kinds and in the amounts customarily maintained by corporations engaged in the same CHAR1\1917164v13 or similar businesses and which are similarly situated to the Lessee, the failure of which would be reasonably likely to have a Material Adverse Effect.
Appears in 1 contract
Samples: Fourth Amendment to Certain Operative Agreements (Big Lots Inc)
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that (i) the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the AgentAgent (ii) that the City of Little Rock, with respect to the Little Rock Property shall create Liens on the Little Rock Property, pursuant to the Bond Indenture in favor of the Bond Trustee, for the benefit of the Series 0000-X Xxxx Xxxxxxxxx but subject to rights of the Lessor under the Head Lease and (iii) that the Series 0000-X Xxxx Xxxxxxxxx shall create Liens on the Bond Loan Collateral pursuant to the Bond Loan Security Agreement in favor of the Lessor. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or herein, in the other Operative Agreements Agreements, the Bond Loan Document or the Bond Document and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent or the Majority Secured Parties may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent or the Majority Secured Parties and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement withoutAgreement, Bond Loan Documents or Bond Document except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantorother Credit Parties. Without limitation, such obligations of the Credit Parties shall include commitment without limitation arrangement fees, administrative fees, unused fees, prepayment penaltiesbreakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements, provided, the foregoing shall not limit the right of the Construction Agent to obtain funding by means of Advances for any matter for which such funding is expressly provided by the Operative Agreements.
(e) The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent (provided the Lessee shall in no event be responsible for other than the reasonable costs and expenses of such appraiser)) to be issued respecting any Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, FSN, any Lender and/or any Holder and (ii) after the occurrence of an Event of Default.
(f) Consistent The Lessee hereby covenants and agrees that, except for amounts payable as Basic Rent, Head Lease Basic Rent and principal and interest on the Bond Loan Note, and as otherwise provided in the Operative Agreements, any and all payment obligations owing from time to time under the Operative Agreements, the Bond Loan Documents and the Bond Documents by any Person to the Agent, any Lender, any Holder or any other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee. Without limitation, such obligations of the Lessee shall include the Supplemental Rent obligations pursuant to this Section 8.3(f), Section 3.3 of the Lease, arrangement fees, administrative fees, participation fees, commitment fees, unused fees, prepayment penalties, breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the terms transactions contemplated by the Operative Agreements, the Bond Loan Documents and conditions the Bond Documents;
(g) At any time the Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(h) The Lessee hereby covenants and agrees that, respecting each Property, Non-Integral Equipment financed under or pursuant to the Operative Agreements and the Bond Loan Documents may constitute up to, but shall not exceed, ten percent (10%) of the aggregate Advances extended at or prior to such time with respect to such Property.
(i) The Lessee hereby covenants and agrees that as of Completion (i) the Property Cost for the Little Rock Property shall be no more than $36,553,808, (ii) the Property Cost for the Phoenix Property shall be no more than $24,446,192 and (iii) each parcel of the Property shall be a Permitted Facility.
(j) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at #0 Xxxxxxxxxxx Xxx, Xxxxxx Xxxx, Xxxxxxxx 00000 or if it shall change its name.
(k) [Intentionally Omitted].
(l) Until all the obligations of the Credit Parties under the Operative Agreements have been finally and indefeasibly paid and satisfied in full, the Commitments and the Holder Commitments terminated and the Term has expired or been earlier terminated, then unless consent has been obtained from the Majority Secured Parties, the Lessee will furnish or cause to be furnished to each Holder, each Lender and the Agent at their respective addresses set forth or referenced in Section 12.2 of this Agreement, or such other office as may be designated by any such Holder, Lender or the Agent from time to time: (i) the financial statements and other information provided by the Lessee under Section 5.01(a) of the Lessee Credit Agreement on the dates provided therein and (ii) at each time financial statements are delivered or to be delivered pursuant to clause (i) above, a compliance certificate duly executed by the president, treasurer, chief financial offer or controller of Acxiom substantially in the form of Exhibit M (the "Officer's Compliance Certificate").
(m) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement, the Bond Documents and the Lease shall not impair or in any way diminish the obligations of the Construction Agent and/or the rights of the Lessor under the Construction Agency Agreement.
(n) Each Credit Party hereby covenants and agrees to cause each Subsidiary of each Credit Party which is a "Guarantor" of Lessee's obligations under the Lessee Credit Agreement to execute a Joinder Agreement and to observe the terms of Sections 5.8(a)-(d) of this Agreement, contemporaneously with such Subsidiary becoming "Guarantor" thereunder.
(o) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Agent within five (5) days of when such Credit Party gains such knowledge.
(p) Until all of the obligations under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Commitments and the Holder Commitments terminated unless consent has been obtained from the Majority Secured Parties, each Credit Party will:
(i) except as permitted by the express provisions of the Lessee Credit Agreement, preserve and maintain its separate legal existence and all rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation (or partnership, limited liability company or other such similar entity, as the case may be) and authorized to do business in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative Agreements and pay and perform (A) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property, and (B) all other indebtedness, obligations and liabilities in accordance with customary trade practices, which if not paid would have a Material Adverse Effect; provided that any Credit Party may contest any item described in this Section 8.3(p)(ii) in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP;
(iii) to the extent failure to do so would have a Material Adverse Effect, observe and remain in compliance with all applicable Laws and maintain in full force and effect all Governmental Actions, in each case applicable to the conduct of its business; keep in full force and effect all licenses or certifications necessary for any Permitted Facility to be operated for its intended purpose; and
(iv) provided that the Agent, the Lenders and the Holders use reasonable efforts to minimize disruption to the business of the Credit Parties permit representatives of the Agent or any Lender or Holder, from time to time, to visit and inspect its properties; inspect, audit and make extracts from its books, records and files, including without limitation management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects.
(q) Lessee shall perform any and all personal property components obligations of Lessor under, and cause Lessor to otherwise remain in full compliance with, the terms and provisions of the Bond Documents and any and all PropertiesGround Lease.
(r) Promptly after obtaining any required architectural approvals by any business park or any other applicable entity with oversight responsibility for the applicable Improvements, the Construction Agent shall deliver to the Agent copies of the same.
(s) If the Construction Budget for any Property is ever modified to exceed the amount of title insurance therefor (as such title insurance is referenced in Section 5.3(g)), then the Construction Agent shall immediately cause an additional endorsement to be issued to increase the amount of title insurance to at least equal the amount referenced in the modified Construction Budget.
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably requestrequest for the purpose of more fully effectuating the provisions of the Operative Agreements.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantorother Credit Parties. Without limitation, such obligations shall include without limitation such arrangement fees, administrative fees, facility fees, breakage costs, indemnities, trustee fees and transaction expenses that the Operative Agreements provide are to be paid by the Lessee and which are incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(e) The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance reasonably satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as reasonably requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) after the occurrence of an Event of Default.
(f) The Lessee hereby covenants and agrees that, except for amounts payable as Basic Rent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender, any Holder or any other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee. Without limitation, such obligations of the Lessee shall include the Supplement Rent obligations pursuant to Section 3.3 of the Lease, arrangement fees, administrative fees, participation fees, commitment fees, unused facility fees, prepayment penalties, breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(fg) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(h) The Lessee hereby covenants and agrees that Equipment (other than Equipment that is essential to the operation of any individual parcel of Property where such Equipment is located) respecting any individual parcel of Property shall at no time constitute in excess of five percent (5%) of the aggregate Advances respecting such parcel of Property funded at such time under the Operative Agreements.
(i) The Lessee hereby covenants and agrees that as of Completion (i) the Property Cost for each individual parcel of the Property shall be no less than $5,000,000 and (ii) each parcel of the Property shall be a Permitted Facility.
(j) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at 0000 Xxxxxxxx Xxxxx Xxxxx, Columbia, Maryland or if it shall change its name.
(k) Unless the Agent otherwise agrees in writing, the Lessee hereby covenants and agrees that Lessee will not exercise its Purchase Option prior to the Expiration Date with respect to less than all of the Properties if, after the exercise of such Purchase Option, the aggregate Property Cost of all Properties remaining after giving effect to such purchase will be less than $15,000,000.
(l) Until all the obligations of the Credit Parties under the Operative Agreements have been finally and indefeasibly paid and satisfied in full, the Commitments and the Holder Commitments terminated and the Term has expired or been earlier terminated, then unless consent has been obtained from the Majority Secured Parties, the Lessee will furnish or cause to be furnished to each Holder, each Lender and the Agent at their respective addresses set forth or referenced in Section 12.2 of this Agreement, or such other office as may be designated by any such Holder, Lender or the Agent from time to time: (i) not later than forty-five (45) days after the end of each fiscal quarter, a certificate duly signed by the chief executive officer, chief operating officer, chief financial officer, treasurer or controller of USF setting forth the Total Debt Ratio for the period of four (4) consecutive fiscal quarters ending with such quarter-end and setting forth the computations employed in calculating the ratio (the "Margin Certificate") and (ii) at each time financial statements are ------------------- delivered or to be delivered pursuant to Section 28.1 of the Lease, a compliance certificate duly executed by the president, treasurer, chief financial offer or controller of USF substantially in the form of EXHIBIT M --------- attached hereto (the "Officer's Compliance Certificate"). --------------------------------
(m) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement and the Lease shall not impair or in any way diminish the obligations of the Construction Agent and/or the rights of the Lessor under the Agency Agreement.
(n) Each Credit Party hereby covenants and agrees to cause each Restricted Subsidiary formed after the Initial Closing Date to execute a Joinder Agreement within thirty (30) days of the formation of such Restricted Subsidiary.
(o) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when such Credit Party gains such knowledge.
(p) Until all of the obligations under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Commitments and the Holder Commitments terminated (unless consent has been obtained from the Majority Secured Parties), each Credit Party will:
(i) except as permitted by the express provisions of the Lessee Credit Agreement, preserve and maintain its separate legal existence and all material rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation (or partnership, limited liability company or other such similar entity, as the case may be) and authorized to do business in each jurisdiction in which the failure to do so qualify would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative Agreements and pay and perform (A) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property, and (B) all other indebtedness, obligations and liabilities in accordance with customary trade practices, which if not paid would have a Material Adverse Effect; provided that any Credit Party may contest any item described -------- in this Section 8.3(p)(ii) in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP;
(iii) to the extent failure to do so would have a Material Adverse Effect, observe and remain in compliance with all applicable Laws and maintain in full force and effect all Governmental Actions, in each case applicable to the conduct of its business, keep in full force and effect all licenses, certifications or accreditations necessary for any Facility to carry on its business, and not permit the termination of any insurance reimbursement program available to any Facility; and
(iv) provided that the Agent, the Lenders and the Holders use reasonable efforts to minimize disruption to the business of the Credit Parties, permit representatives of the Agent or any Lender or Holder, from time to time, to visit and inspect its properties; inspect, audit and make extracts from its books, records and files, including without limitation management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects.
(q) Lessee shall take all action as is necessary in Lessee's reasonable opinion to assure that Lessee's computer based systems are able to operate and effectively process data including dates on and after January 1, 2000.
(r) Lessee shall perform any and all personal property components obligations of any Lessor under, and all Propertiescause Lessor to otherwise remain in full compliance with, the terms and provisions of each Ground Lease, if any.
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) after the occurrence of an Event of Default.
(e) Each Credit Party The Lessee hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by Lessee and guaranteed by the GuarantorLessee. Without limitation, such obligations of the Lessee shall include without limitation arrangement fees, administrative fees, participation fees, commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses Transaction Expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble (in the case of personal property) and make the same available to the Agent (on behalf of the Lessor).
(g) The Lessee hereby covenants and agrees that Equipment respecting any individual parcel of Property shall at no time constitute in excess of fifteen percent (15%) of the aggregate Advances respecting such parcel of Property funded at such time under the Operative Agreements.
(h) The Lessee hereby covenants and all personal property components agrees that as of Completion (i) the Property Cost for each individual parcel of the Property shall be no less than $3,000,000 and (ii) each parcel of the Property shall be a Permitted Facility.
(i) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at Sarasota, Florida or if it shall change its name.
(j) [intentionally omitted]
(k) The Lessee shall furnish concurrently to the Agent each of the documents, notices and all Properties.agreements required to be furnished to the Lenders under the Lessee Credit Agreement, including without limitation those documents required to be delivered pursuant to Section 7.1, Section 7.2 and Section 7.3
Appears in 1 contract
Samples: Participation Agreement (Correctional Services Corp)
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.5 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time 34 to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantorother Credit Parties. Without limitation, such obligations of the Lessee shall include commitment without limitation arrangement fees, administrative fees, unused fees, prepayment penaltiesbreakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(e) The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent from time to time as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) after the occurrence of an Event of Default.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(g) The Lessee hereby covenants and agrees that Equipment (constituting solely personal property which is not and shall at no time become a fixture or otherwise be deemed to constitute real property) respecting any individual parcel of Property shall at no time constitute in excess of twenty percent (20%) of the aggregate Advances respecting such parcel of Property funded at such time under the Operative Agreements.
(h) The Lessee hereby covenants and agrees that as of Completion (i) the Property Cost for each individual parcel of the Property shall be (A) no less than $5,000,000 (except that up to five (5) Properties may be purchased or constructed each having a Property Cost of no less than $2,000,000 and no more than $5,000,000) and (B) no more than $75,000,000 and (ii) each parcel of the Property shall be a Facility.
(i) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at the location referenced in Section 6.3(i) or if it shall change its name.
(j) The Lessee hereby covenants and agrees that the aggregate Property Cost of Properties purchased for any reason by the Lessee pursuant to its Purchase Option prior to the Expiration Date shall not exceed twenty-five percent (25%) of the aggregate Property Cost for all Properties funded during the Commitment Period (regardless of whether such Properties are then subject to the Lease).
(k) Until all the obligations of the Credit Parties under the Operative Agreements have been finally and indefeasibly paid and satisfied in full, the Commitments and the Holder Commitments terminated and the Term has expired or been earlier terminated, then unless consent has been obtained from the 35 Majority Secured Parties, the Lessee will furnish or cause to be furnished to each Holder, each Lender and the Agent at their respective addresses set forth or referenced in Section 12.3 of this Agreement, or such other office as may be designated by any such Holder, Lender or the Agent from time to time: (i) not later than forty-five (45) days after the end of each fiscal quarter, a certificate duly signed by the chief executive officer, chief operating officer, chief financial officer, treasurer or controller of Quorum setting forth the Total Leverage Ratio for the period of four (4) consecutive fiscal quarters ending with such quarter-end and setting forth the computations employed in calculating the ratio (the "Margin Certificate") and (ii) at each time financial statements are delivered or to be delivered pursuant to Section 28.1 of the Lease, a compliance certificate duly executed by the president, treasurer, chief financial offer or controller of Quorum substantially in the form of EXHIBIT N attached hereto (the "Officer's Compliance Certificate").
(l) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement and the Lease shall not impair or in any way diminish the obligations of the Construction Agent and/or the rights of the Lessor under the Agency Agreement.
(m) Each Credit Party hereby covenants and agrees to cause each Wholly-Owned Entity formed after the Initial Closing Date to execute a Joinder Agreement and to observe the terms of Section 5.9 of this Agreement, all within thirty (30) days of the formation of such Wholly-Owned Entity.
(n) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when the Credit Party gains such knowledge.
(o) Until all of the obligations under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Commitments and the Holder Commitments terminated, unless consent has been obtained from the Majority Secured Parties, each Credit Party will:
(i) except as permitted by the express provisions of the Lessee Credit Agreement, preserve and maintain its separate legal existence and all personal property components rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation and authorized to do business in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative Agreements and pay or perform (A) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property, and (B) all other indebtedness, obligations and liabilities in accordance with customary trade practices; which if not paid would have a Material Adverse Effect; provided that any Credit Party may contest any item described in this Section 8.3(o)(ii) in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP;
(iii) to the extent failure to do so would have a Material Adverse Effect, observe and remain in compliance with all applicable Laws and maintain 36 in full force and effect all Governmental Actions, in each case applicable to the conduct of its business; keep in full force and effect all licenses, certifications or accreditations necessary for any Facility to carry on its business; and not permit the termination of any insurance reimbursement program available to any Facility; and
(iv) provided that the Agent, the Lenders and all Propertiesthe Holders use reasonable efforts to minimize disruption to the business of the Credit Parties, permit representatives of the Agent or any Lender or Holder, from time to time, to visit and inspect its properties; inspect, audit and make extracts from its books, records and files, including without limitation management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects.
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantorother Credit Parties. Without limitation, such obligations of the Credit Parties shall include commitment without limitation arrangement fees, administrative fees, unused fees, prepayment penaltiesbreakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(e) The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) after the occurrence of an Event of Default.
(f) Consistent The Lessee hereby covenants and agrees that, except for amounts payable as Basic Rent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender, any Holder or any other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee. Without limitation, such obligations of the Lessee shall include the Supplement Rent obligations pursuant to Section 3.3 of the Lease, arrangement fees, administrative fees, participation fees, commitment fees, unused fees, prepayment penalties, breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the terms and conditions transactions contemplated by the Operative Agreements.
(g) At any time the Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(h) The Lessee hereby covenants and agrees that, respecting each Property, Non-Integral Equipment financed under the Operative Agreements may constitute up to, but shall not exceed, ten percent (10%) of the aggregate Advances extended at or prior to such time with respect to such Property.
(i) The Lessee hereby covenants and agrees that as of Completion (i) the Property Cost for each individual parcel of the Property shall be no less than $1,000,000 and (ii) each parcel of the Property shall be a Permitted Facility.
(j) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at 000 Xxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxxxx 00000 or if it shall change its name.
(k) Unless the Agent otherwise agrees in writing, the Lessee hereby covenants and agrees that the aggregate Property Cost of Non-Integral Equipment purchased for any reason by the Lessee prior to the Expiration Date shall not exceed ten percent (10%) of the aggregate Property Cost for all Properties funded during the Commitment Period.
(l) Until all the obligations of the Credit Parties under the Operative Agreements have been finally and indefeasibly paid and satisfied in full, the Commitments and the Holder Commitments terminated and the Term has expired or been earlier terminated, then unless consent has been obtained from the Majority Secured Parties, the Lessee will furnish or cause to be furnished to each Holder, each Lender and the Agent at their respective addresses set forth or referenced in Section 12.2 of this Agreement, or such other office as may be designated by any such Holder, Lender or the Agent from time to time: (i) not later than forty-five (45) days after the end of each fiscal quarter, a certificate duly signed by the chief executive officer, chief operating officer, chief financial officer, treasurer or controller of Lessee setting forth the Adjusted Leverage Ratio for the period of four (4) consecutive fiscal quarters ending with such quarter-end and setting forth the computations employed in calculating the ratio (the "Margin Certificate") and (ii) at each time financial statements ------------------ are delivered or to be delivered pursuant to Section 28.1 of the Lease, a compliance certificate duly executed by the president, treasurer, chief financial offer or controller of Lessee substantially in the form of Exhibit M ATTACHED HERETO (THE "OFFICER'S COMPLIANCE CERTIFICATE"). --------- --------------------------------
(m) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement and the Lease shall not impair or in any way diminish the obligations of the Construction Agent and/or the rights of the Lessor under the Agency Agreement.
(n) Each Credit Party hereby covenants and agrees to cause each Domestic Subsidiary formed or acquired after the Initial Closing Date to execute a Joinder Agreement and to observe the terms of Sections 5.8(a)-(d) of this Agreement, all within thirty (30) days of the formation or acquisition of such Domestic Subsidiary.
(o) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when such Credit Party gains such knowledge.
(p) Until all of the obligations under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Commitments and the Holder Commitments terminated unless consent has been obtained from the Majority Secured Parties, each Credit Party will:
(i) except as permitted by the express provisions of the Lessee Credit Agreement, preserve and maintain its separate legal existence and all personal property components rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation (or partnership, limited liability company or other such similar entity, as the case may be) and authorized to do business in each jurisdiction in which the failure to do so qualify would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative Agreements and pay and perform (A) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property, and (B) all other indebtedness, obligations and liabilities in accordance with customary trade practices, which if not paid would have a Material Adverse Effect; provided that any Credit Party may contest any item described -------- in this Section 8.3(p)(ii) in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP;
(iii) to the extent failure to do so would have a Material Adverse Effect, observe and remain in compliance with all applicable Laws and maintain in full force and effect all Governmental Actions, in each case applicable to the conduct of its business; keep in full force and effect all licenses, certifications or accreditations necessary for any Facility to carry on its business; and not permit the termination of any insurance reimbursement program available to any Facility; and
(iv) provided that the Agent, the Lenders and the Holders use reasonable efforts to minimize disruption to the business of the Credit Parties permit representatives of the Agent or any Lender or Holder, from time to time, to visit and inspect its properties; inspect, audit and make extracts from its books, records and files, including without limitation management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects.
(q) Lessee shall take all Propertiesaction reasonably necessary to assure that Lessee's computer based systems are able to operate and effectively process data including dates on and after january 1, 2000. At the request of the Agent, Lessee shall provide Agent assurance acceptable to Agent of Lessee's Year 2000 compatibility. In addition, each credit party will promptly notify the Agent in the event sucH Credit Party discovers or determines that any computer application (including those of any supplier, vendor or customer of such Credit Party or any Subsidiary of such Credit Party) that is material to such Credit Party's or any of its Subsidiaries' business and operations will not be Year 2000 Compliant, except to the extent that such failure shall not have and could not reasonably be expected to have a Material Adverse Effect.
(r) Promptly after obtaining any required architectural approvals by any business park or any other applicable entity with oversight responsibility for the applicable Improvements, the Construction Agent shall deliver to the Agent copies of the same.
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such LiensLiens until such liens are subject to release in accordance with this Agreement and the other Operative Agreements. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person entitled thereto) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person entitled thereto) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as reasonably requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) after the occurrence of an Event of Default.
(e) Each Credit Party The Lessee hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantor. Without limitation, such obligations shall include commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(f) Consistent accordance with the terms and conditions of the Security Agreement, each of the Construction Agent and Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make available to the Agent (on behalf of Lessor) any and all personal property components of any and all Properties.this Agreement and
Appears in 1 contract
Samples: Participation Agreement (Veritas Software Corp /De/)
Credit Party Covenants, Consent and Acknowledgment. Until all the Obligations of the Lessee and/or the Construction Agent (other than contingent obligations not then due) have been paid and satisfied in full in cash and the covenants terminated, each Credit Party agrees as follows:
(a) Each Credit Party acknowledges and agrees that the Owner TrusteeLessor, pursuant to the terms and conditions of the Security Agreement and the Mortgage InstrumentsDocuments, shall create Liens respecting the various personal property, fixtures and real property collateral described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection accordance with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably requestSection 12.11 hereof.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Credit Loans, the Mortgage Loans and the Lessor Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments Documents have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to the Lessor or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to the Lessor or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease (except in respect of Excepted Payments and as provided in Section 12.4) shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, to which it is a party except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]From and after the Rent Commencement Date, the Lessee hereby covenants and agrees to reimburse the Agent for any Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting the Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, any Mortgage Lender and/or any Credit Lender and (ii) after the occurrence and continuance of a Lease Event of Default. To the extent any such Appraisal or reappraisal is deemed necessary by the Agent prior to the Rent Commencement Date, such shall be paid for as a Transaction Expense.
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Financing Party or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the GuarantorGuarantors, which is subject to the funding requirements described in this Agreement prior to the Rent Commencement Date. Without limitation, such obligations of the Credit Parties shall include commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative AgreementsTransaction Expenses.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security AgreementProperty or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble the Equipment and make the same available to the Agent (on behalf of the Lessor) at the Improvements.
(g) Each of the Construction Agent and the Lessee hereby covenants and agrees that (i) each Indemnified Person will, at all times, be covered to the extent so provided in Article XIV of the Lease, as additional insured or loss payee, as the case may be, under the insurance policies required to be maintained by the Construction Agent or the Lessee pursuant to Section 2.6(e) of the Agency Agreement and Article XIV of the Lease, or pursuant to the insurance policies that the Construction Agent or the Lessee requires any relevant contractor or subcontractor to carry, for any Claim arising out of the acts or omissions of any of the contractors or subcontractors of the Construction Agent or the Lessee and (ii) each insurance policy that is carried by the Construction Agent or the Lessee pursuant to the Agency Agreement or the Lease (A) shall at all times contain a waiver of subrogation clause pursuant to which the relevant insurers waive any and all personal rights to make any claim against any such additional insured or loss payee with respect to any payments made, or any obligation of such insureds under, any such policy and (B) shall at all times cover each such additional insured or loss payee for any and all Claims relating to the Property or the transactions contemplated by the Operative Agreements respecting the Property. The Construction Agent and the Lessee will be liable to each such additional insured or loss payee, on a full recourse basis, for any breach of the foregoing covenants and agreements.
(h) [Reserved].
(i) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the location of the Lessee for purposes of the UCC shall cease to be in the State of Delaware or if the Lessee’s principal place of business, chief executive office or office where the records concerning the account or contract rights relating to the Property are kept shall cease to be located at 0000 Xxx Xxxxx Xxxxxxxxxx, Santa Clara, California 95050or if it shall change its name.
(j) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement and under the Lease shall not impair or in any way diminish the obligations of the Construction Agent and/or the rights of the Lessor under the Agency Agreement.
(k) [Reserved].
(l) The Lessee shall cause all financing statements and continuation statements and any other necessary documents covering the right, title and interest of the Agent as agent for the Secured Parties with regard to the Collateral to be promptly produced, to be submitted to the Agent for review and after confirmation thereof by the Agent, to be filed for recordation in such manner and in such places as may be required by law fully to preserve and protect the right, title and interest of the Agent as agent for the Secured Parties hereunder to all property components comprising the Collateral. The Lessee shall deliver to the Agent file-stamped copies of, or filing receipts for, any document recorded, registered or filed as provided above, promptly following such recording, registration or filing. The Lessor shall cooperate fully with the Lessee in connection with the obligations of the Lessee set forth above and will execute or cause the execution (at the expense of the Lessee, which the Lessee agrees to pay) of any and all Propertiesdocuments commercially reasonably required to fulfill the intent of this Section 8.3(l).
(m) The Lessee shall perform any and all obligations of Lessor under, and cause Lessor to otherwise remain in full compliance with, the terms and provisions of each Ground Lease, if any.
(n) The Credit Parties shall not permit the Lessee to issue any Equity Interests unless such Equity Interests are pledged in favor of the Agent pursuant to the Pledge Agreement and the certificate evidencing such Equity Interests is delivered to the Agent with a blank membership interest power, all pursuant to documentation satisfactory to the Agent, in its commercially reasonable discretion.
(o) With regard to the Amended and Restated Operating Agreement of NVIDIA Land Development, LLC, dated as of June 2, 2009, as amended by that certain First Amendment to the Amended and Restated Operating Agreement dated as of June 16, 2015, each of the foregoing by the Parent, as the sole member of the Lessee, the Credit Parties shall not permit any amendment, modification, extension, supplement, restatement and/or replacement of such Agreement or such First Amendment, in each case to the extent relating to such First Amendment and/or the subject matter thereof, without the consent of the Agent, to be given or withheld, in its commercially reasonable discretion.
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee shall instead be paid directly to the Agent or as the Agent may direct from time to time and (ii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is delivered, or is required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each Holder.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, in each case, obtaining the prior written consent of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j).
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative Agreements, any and all payment obligations owing from time to time under the Operative Agreements to the Agent, any Lender or any Holder shall (without further action) be deemed to be Supplemental Rent obligations payable by Lessee and guaranteed by the Guarantor. Without limitation, such obligations shall include commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(f) Consistent with the terms and conditions of the Security Agreement, each of the Construction Agent and Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make available to the Agent (on behalf of Lessor) any and all personal property components of any and all Properties.
Appears in 1 contract
Samples: Participation Agreement (Capital One Financial Corp)
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with to satisfy their covenants herein or in the other Operative Agreements Agreements, including without limitation at any time and shall from time to time promptly and duly execute executing and deliver delivering any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) from time to time after the occurrence and during the continuance of an Event of Default.
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by Lessee and guaranteed by the GuarantorLessee. Without limitation, such obligations shall include commitment without limitation arrangement fees, administrative fees, participation fees, facility fees, unused fees, prepayment penalties, breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of a Property or any component thereof, the Security Agreement, each of the Construction Agent and Lessee hereby covenants and agrees, at its own cost and expense, to assemble (in the case of tangible personal property) and make the same available to the Agent (on behalf of the Lessor).
(g) The Lessee hereby covenants and agrees that respecting all Properties in the aggregate subject to the Lease at any time (and without respect to analysis on a Property by Property basis), (i) Non-Integral Equipment financed under the Operative Agreements may constitute up to, but not to exceed, fifteen percent (15%) of the aggregate Advances extended at or prior to such time and (ii) Equipment (including without limitation such Non-Integral Equipment) financed under the Operative Agreements may constitute up to, but not exceed, fifty percent (50%) of the aggregate Advances extended at or prior to such time.
(h) The Lessee hereby covenants and agrees that (i) the Property Cost for each individual parcel of the Property shall be no less than $2,000,000 and (ii) each parcel of the Property shall be a Permitted Facility.
(i) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent (A) if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at Houston, Xxxxxx County, Texas or (B) if it shall change its name or (C) if its location for purposes of the UCC shall change.
(j) The Lessee hereby covenants and agrees that the aggregate Property Cost of Properties purchased for any reason by the Lessee pursuant to its Purchase Option prior to the Expiration Date shall not exceed ten percent (10%) of the aggregate Property Cost for all Properties as of the Closing Date.
(k) [Reserved].
(l) Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Lessee and within one-hundred (100) days after the close of each fiscal year of the Lessee, the Lessee hereby covenants and agrees to deliver to the Agent, the Lenders and the Holders a Compliance Certificate and a Covenant Compliance Worksheet reflecting the computation of the financial covenants incorporated by reference into the Lease pursuant to Section 28.1 of the Lease as of the last day of the period covered by such financial statements.
(m) Each Credit Party agrees that the Tranche A Loans, the Tranche B Loans and the Certificates will be treated as debt of US Oncology for purposes of calculating financial covenants.
(n) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when an officer of such Credit Party gains such knowledge.
(o) Until all of the obligations under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Commitments and the Holder Commitments terminated unless consent has been obtained from the Majority Secured Parties, each Credit Party will:
(i) except as permitted by the express provisions of the Lessee Credit Agreement, preserve and maintain its separate legal existence and all personal property components rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation (or partnership, limited liability company or other such similar entity, as the case may be) and authorized to do business in each jurisdiction in which the failure to do so qualify shall have or could reasonably be expected to have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative Agreements and pay or perform (A) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property, and (B) all Propertiesother indebtedness, obligations and liabilities in accordance with customary trade practices, which in the case of each of (A) and (B) if not paid shall have or could reasonably be expected to have a Material Adverse Effect; provided, -------- that any Credit Party may contest any item described in this Section 8.3(o)(ii) in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP;
(iii) do each of the following to the extent failure to do so shall have or could reasonably be expected to have a Material Adverse Effect: observe and remain in compliance with all applicable Laws and maintain in full force and effect all Governmental Actions, in each case applicable to the conduct of its business; keep or cause to be kept in full force and effect all licenses, certifications or accreditations necessary for any Permitted Facility to carry on its business; and
(iv) provided, that the Agent, the Lenders and the Holders use -------- reasonable efforts to minimize disruption to the business of the Credit Parties, permit representatives of the Agent or any Lender or any Holder, from time to time upon reasonable notice and during normal banking hours to do each of the following: to visit and inspect its properties; inspect, audit and make extracts from its books, records and files, including without limitation management letters prepared by independent accountants; and discuss with its principal officers, and (in the presence of its officers) its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects.
(p) After the Closing Date, the Lessee hereby agrees to (i) execute and deliver such amendments to the Mortgage Instruments and such other documents and instruments that, in the reasonable judgment of the Agent, are necessary or advisable to maintain the perfection and priority of the Liens created thereunder and (ii) use reasonable efforts to obtain title insurance endorsements regarding such amendments, documents or instruments.
(q) The Lessee will promptly forward to the Agent written notification of the commencement of an action regarding Lessee's right, title and interest, if any, in and to any material Commercial Tort Claims (as defined in Section 1(a) of the Security Agreement) constituting Trust Property of which the Lessee is aware and as to which the Lessee is the claimant and execute and deliver such statements, documents and notices and do and cause to be done all such things as may be reasonably required by the Agent or required by law, including the UCC, to fully create, perfect and maintain the priority of the Agent's security interest in any such Commercial Tort Claims.
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens in favor of the Agent respecting the various personal property, fixtures and real property described therein in favor of to secure the AgentOwner Trustee's obligations under this Agreement and under the other Operative Agreements. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.5 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) after the occurrence of an Event of Default.
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantorother Credit Parties. Without limitation, such obligations of the Lessee shall include without limitation arrangement fees, administrative fees, commitment fees, unused fees, prepayment penaltiesbreakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(g) The Lessee hereby covenants and agrees that Equipment respecting any individual Property (exclusive of fixtures which are integral and necessary for the structure and/or mechanical operation of such Property) shall at no time constitute in excess of fifteen percent (15%) of the aggregate Advances respecting such Property funded at such time under the Operative Agreements.
(h) The Lessee hereby covenants and agrees that (i) as of Completion (A) the Property Cost for each individual parcel of the Property shall be no less than $750,000 and (B) each parcel of the Property shall be a Permitted Facility and (ii) the aggregate Property Cost for all Properties at any time shall not exceed $50,000,000.
(i) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at 105 Westwood Place, Suite 400, Brentwood, Williamson County, Xxxxxxxxx xx xx xx xxxxx xxxxxx xxx xxxx xx xx xxx xxxxxxxx for purposes of Uniform Commercial Code filings shall cease to be in the State of Delaware.
(j) The Lessee hereby covenants and agrees that the aggregate Property Cost of Properties purchased for any reason by the Lessee pursuant to the Purchase Option of Lessee and/or sold for any reason to any Person pursuant to the Sale Option of Lessee prior to the Expiration Date shall not exceed the lesser of (i) thirty-three percent (33%) of the aggregate Property Cost (up to and including the date any such Election Date is specified by Lessee) for all Properties then subject to the Lease and all personal property components other properties which were previously Properties subject to the Lease and (ii) Twelve Million Dollars ($12,000,000). To the extent any such purchase pursuant to the Purchase Option and/or sale pursuant to the Sale Option shall occur prior to the Construction Period Termination Date, then the aggregate amount paid to the Agent (for the benefit of the Financing Parties with respect to any such Purchase Option and/or Sale Option) shall remain available for future Advances until the Construction Period Termination Date; provided in no event shall any Lender be obligated to lend more than its Lender Commitment and all Propertiesin no event shall any Holder be obligated to advance more than its Holder Commitment.
(k) The Lessee shall furnish to the Agent at such times as required under the Lessee Credit Agreement the financial statements and other information required to be delivered pursuant to Section 5.1 and Section 5.2
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantorother Credit Parties. Without limitation, such obligations of the Credit Parties shall include commitment without limitation arrangement fees, structuring fees, administrative fees, unused fees, prepayment penaltiesfacility fees, breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(e) The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) after the occurrence of an Event of Default.
(f) Consistent The Lessee hereby covenants and agrees that, except for amounts payable as Basic Rent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender, any Holder or any other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee. Without limitation, such obligations of the Lessee shall include the Supplement Rent obligations pursuant to Section 3.3 of the Lease, arrangement fees, structuring fees, administrative fees, participation fees, commitment fees, unused fees, facility fees, prepayment penalties, breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the terms and conditions transactions contemplated by the Operative Agreements.
(g) At any time the Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(h) The Lessee hereby covenants and agrees that, respecting each Property, Non-Integral Equipment financed under the Operative Agreements may constitute up to, but shall not exceed, twenty-five percent (25%) of the aggregate Advances extended at or prior to such time with respect to such Property.
(i) The Lessee hereby covenants and agrees that as of Completion each parcel of the Property shall be a Permitted Facility.
(j) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at 000 Xxxx Xxxxxx Xxxxxx, 000-0000, Xxxxxxxxxx, Xxxxxxxx Xxxxxx, Ohio 45201-2301, or if it shall change its name.
(k) Unless the Agent otherwise agrees in writing, the Lessee hereby covenants and agrees that the aggregate Property Cost of Non-Integral Equipment purchased for any reason by the Lessee prior to the Expiration Date shall not exceed twenty-five percent (25%) of the aggregate Property Cost for all Properties funded during the Commitment Period.
(l) The Lessee shall furnish or cause to be furnished to the Agent at its address set forth or referenced in Section 12.2 of this Agreement, or such other office as may be designated by the Agent from time to time at each time financial statements are delivered (if earlier than the date required for such delivery pursuant to Section 8.3(u)) or are to be delivered pursuant to Section 8.3(u), a compliance certificate duly executed by the president, treasurer, chief financial offer or controller of Convergys substantially in the form of Exhibit M attached hereto (the "Officer's Compliance Certificate").
(m) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement and the Lease shall not impair or in any way diminish the obligations of the Construction Agent and/or the rights of the Lessor under the Agency Agreement.
(n) [Intentionally Omitted]
(o) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when such Credit Party gains such knowledge.
(p) Until all of the obligations under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Commitments and the Holder Commitments terminated unless consent has been obtained from the Majority Secured Parties and except for the merger of one or more Guarantors into the Lessee with the Lessee being the surviving entity, each Credit Party will:
(i) preserve and maintain its separate legal existence and all rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation (or partnership, limited liability company or other such similar entity, as the case may be) and authorized to do business in each jurisdiction in which the failure to do so qualify would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative Agreements and pay and perform (A) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property, and (B) all other indebtedness, obligations and liabilities in accordance with customary trade practices, which if not paid would have a Material Adverse Effect; provided that any Credit Party may contest any item described in this Section 8.3(p)(ii) in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP;
(iii) to the extent failure to do so would have a Material Adverse Effect, observe and remain in compliance with all applicable Laws and maintain in full force and effect all Governmental Actions, in each case applicable to the conduct of its business; keep in full force and effect all licenses, certifications or accreditations necessary for any Facility to carry on its business; and not permit the termination of any insurance reimbursement program available to any Facility; and
(iv) provided that the Agent, the Lenders and the Holders use reasonable efforts to minimize disruption to the business of the Credit Parties permit representatives of the Agent or any Lender or Holder, from time to time, to visit and inspect its properties; inspect, audit and make extracts from its books, records and files, including without limitation management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects.
(q) Lessee shall perform any and all personal property components obligations of Lessor under, and cause Lessor to otherwise remain in full compliance with, the terms and provisions of each Ground Lease, if any.
(r) Promptly after obtaining any required architectural approvals by any business park or any other applicable entity with oversight responsibility for the applicable Improvements, the Construction Agent shall deliver to the Agent copies of the same.
(s) Each Credit Party will promptly notify the Agent in the event such Credit Party discovers or determines that any computer application (including those of any supplier, vendor or customer of such Credit Party or any Subsidiary of such Credit Party) that is material to such Credit Party's or any of its Subsidiaries' business and operations will not be Year 2000 Compliant, except to the extent that such failure shall not have and could not reasonably be expected to have a Material Adverse Effect.
(t) The Lessee shall cause the Lenders and the Holders to share pari passu in any and all Propertiescollateral securing any senior Debt of any Credit Party.
(i) The Lessee covenants and agrees to furnish, or cause to be furnished, to the Agent:
(A) As soon as available, but in any event within ninety (90) days after the end of each fiscal year, audited consolidated and company-prepared consolidating balance sheets of the Lessee and its Subsidiaries and related statements, audited consolidated and company-prepared consolidating statements of income, retained earnings and cash flows, audited by PricewaterhouseCoopers, L.L.P. or other independent public accounting firm reasonably acceptable to the Agent, setting forth comparative information for the previous year, and reported without a "going concern" or like qualification or exception, or qualification indicating limitation of the scope of the audit; and
(B) As soon as available, and in any event within forty-five (45) days after the end of each fiscal quarter, a company-prepared consolidated and consolidating balance sheet of the Lessee and its Subsidiaries and related company-prepared consolidated and consolidating statements of income, retained earnings and cash flows for the quarter and for the portion of the year with comparative information for the corresponding periods for the previous year. All such financial statements to be complete and correct in all material respects (subject, in the case of interim statements, to normal recurring year-end audit adjustments) and to be prepared in reasonable detail and in accordance with GAAP throughout the periods reflected therein (except as approved by such accountants and disclosed therein) and further accompanied by a description of, and an estimation of the effect on the financial statements on account of, a change in the application of accounting principles from a prior period.
(C) Promptly upon request, such additional financial and other information as the Agent may reasonably request from time to time.
(ii) The Lessee covenants and agrees to furnish, or cause to be furnished, to the Agent:
(A) [Intentionally Omitted]
(B) Copies of reports and information which the Lessee or its Subsidiaries sends to its stockholders or files with the Securities and Exchange Commission, and any other financial or other information as the Agent may reasonably request.
(C) Promptly, upon becoming aware thereof, notice of the occurrence of an Event of Default.
(v) Consolidated Net Worth shall not at any time be less than the sum of (i) $405,000,000 plus (ii) at the end of each fiscal quarter of the Lessee beginning with such fiscal quarter ending September 30, 1998 fifty percent (50%) of Consolidated Net Income for the fiscal quarter of the Lessee than ended (such Consolidated Net Income in no event to be less than zero), such increases to be cumulative plus (iii) one hundred percent (100%) of the net proceeds of equity issuances by any Credit Party from and after June 30, 1998.
(w) As of the last day of each fiscal quarter of the Lessee, the Consolidated Interest Coverage Ratio shall be greater than 3.00 to 1.00.
(x) As of the last day of each fiscal quarter of the Lessee, the Consolidated Leverage Ratio shall be not greater than 3.00 to 1.00.
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. The Credit Parties, jointly and severally, covenant and agree that until Payment in Full, the Credit Parties shall comply at all times with the following covenants:
(a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection accordance with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably requestSection 12.11 hereof.
(b) Each Lessor Party hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans Lessor Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments Documents have been released (i) any and all Rent and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee shall instead be paid directly to the Agent or as the Agent may direct from time to time and (ii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is delivered, or is required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each Holder.excluding Excepted
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]From and after the Rent Commencement Date, the Lessee hereby covenants and agrees to reimburse the Agent for any Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting the Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent and/or any Lessor Party and (ii) after the occurrence and continuance of an Event of Default. To the extent any such Appraisal or reappraisal is deemed necessary by the Agent prior to the Rent Commencement Date, such shall be paid for as a Transaction Expense.
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Financing Party or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the GuarantorGuarantors, which is subject to the funding requirements described in this Agreement prior to the Rent Commencement Date. Without limitation, such obligations of the Credit Parties shall include commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative AgreementsTransaction Expenses.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security AgreementProperty or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble the Equipment and make the same available to the Agent (on behalf of the Lessor) at the Property.
(g) Each of the Construction Agent and the Lessee hereby covenants and agrees that (i) each Indemnified Person will, at all times, be covered to the extent so provided in Article XIV of the Lease, as additional insured or loss payee, as the case may be, under the insurance policies required to be maintained by the Construction Agent or the Lessee pursuant to Section 2.6(e) of the Agency Agreement and Article XIV of the Lease, or pursuant to the insurance policies that the Construction Agent or the Lessee requires any relevant contractor or subcontractor to carry, for any Claim arising out of the acts or omissions of any of the contractors or subcontractors of the Construction Agent or the Lessee and (ii) each insurance policy that is carried by the Construction Agent or the Lessee pursuant to the Agency Agreement or the Lease (A) shall at all times contain a waiver of subrogation clause pursuant to which the relevant insurers waive any and all personal rights to make any claim against any such additional insured or loss payee with respect to any payments made, or any obligation of such insureds under, any such policy and (B) shall at all times cover each such additional insured or loss payee for any and all Claims relating to the Property or the
(h) The Lessee hereby covenants and agrees that as of the Completion, the Property shall be the Permitted Facility.
(i) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the location of the Lessee for purposes of the UCC shall cease to be in the State of Ohio, if the Lessee’s principal place of business shall cease to be located at 0000 X. Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx Xxxxxx, XX 00000 or if the Lessee’s chief executive office or office where the records concerning the account or contract rights relating to the Property are kept shall cease to be located at 0000 X. Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx Xxxxxx, XX 00000 or if it shall change its name. The Lessee shall at all times maintain a mailing address at: AVDC, LLC, c/o Big Lots, Inc., 0000 X. Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, XX 00000.
(j) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement and under the Lease shall not impair or in any way diminish the obligations of the Construction Agent and/or the rights of the Lessor under the Agency Agreement.
(k) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon a Responsible Officer of such Credit Party gaining knowledge of the occurrence of any Default or Event of Default (whether material or not) which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when such Credit Party gains such knowledge.
(l) The Lessee shall cause all financing statements and continuation statements and any other necessary documents covering the right, title and interest of the Agent as agent for the Secured Parties with regard to the Collateral to be promptly produced, to be submitted to the Agent for review and after confirmation thereof by the Agent, to be filed for recordation in such manner and in such places as may be required by law fully to preserve and protect the right, title and interest of the Agent as agent for the Secured Parties hereunder to all property components comprising the Collateral. The Lessee shall deliver to the Agent file-stamped copies of, or filing receipts for, any document recorded, registered or filed as provided above, as soon as available following such recording, registration or filing. The Lessor shall cooperate fully with the Lessee in connection with the obligations of the Lessee set forth above and will execute or cause the execution (at the expense of the Lessee, which the Lessee agrees to pay) of any and all Propertiesdocuments reasonably required to fulfill the intent of this Section 8.3(l).
(m) Each Credit Party acknowledges and agrees that such Credit Party shall at no time be an EEA Financial Institution.
(n) The Lessee covenants and agrees to deliver to the Agent, on or before the Commencement Date, the Lease and a memorandum thereof (or short form lease) (such memorandum or short form lease to be in the form attached to the Lease as Exhibit B or in such other form as is acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording).
(o) In addition to, and not in limitation of, the requirements of Article XIV of the Lease, Lessee will maintain insurance against loss or damage which to the Lessee’s knowledge is similar to the kinds and in the amounts customarily maintained by corporations engaged in the same
Appears in 1 contract
Samples: Fourth Amendment to Certain Operative Agreements (Big Lots Inc)
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person (other than Excepted Payments) shall instead be paid directly to the Agent (on behalf of the Person entitled thereto) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantorother Credit Parties. Without limitation, such obligations of the Credit Parties shall include the Supplemental Rent obligations pursuant to Section 3.3 of the Lease, arrangement fees, administrative fees, participation fees, commitment fees, unused feesUnused Fees, prepayment penalties, breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(e) The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued, at the Lessee's sole expense, respecting any Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any Legal Requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) after the occurrence and during the continuation of an Event of Default.
(f) Consistent with [intentionally omitted].
(g) At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(h) The Lessee hereby covenants and agrees that on or before the date that is six months after the Initial Closing Date, the Trust shall own one or more Properties (i) for which Completion has occurred and (ii) which have an aggregate Property Cost (exclusive of the Initial Holder Advance) that equals or exceeds $10,000,000.
(i) The Lessee hereby covenants and agrees that as of the date of the final Post-Completion Construction Advance for each individual Property: (i) the Property Cost for such Property shall not exceed $12,500,000 and (ii) such Property shall be a Permitted Facility.
(j) The Lessee hereby covenants and agrees that (i) it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at 1155 Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxxx, 00000, xxd (ii) if it shall change its name, or if the chief executive office of any Credit Party shall change from that identified on Exhibit J attached hereto, each such change shall be subject to Section 12.
(k) Unless the Agent otherwise agrees in writing, the Lessee hereby covenants and agrees that the aggregate Property Cost of Non-Integral Equipment purchased for any reason by the Lessee prior to the Expiration Date shall not exceed ten percent (10%) of the aggregate Property Cost for all Properties funded hereunder.
(l) Until all the obligations of the Credit Parties under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Commitments and the Holder Commitments terminated, then unless consent has been obtained from the Majority Secured Parties, the Lessee will furnish or cause to be furnished to the Agent, for the benefit of each Holder and each Lender at its address, set forth or referenced in Section 12.2 of this Agreement, or such other office as may be designated by the Agent from time to time, not later than 11:00 a.m. on the 11th day of each calendar month, a certificate (a "Monthly NOI Certificate") duly signed by the chief executive officer, chief operating officer, chief financial officer, treasurer or controller of the Lessee substantially in the form of Exhibit M attached hereto setting forth the NOI for each Property for which the Completion Date has occurred and the aggregate NOI for all Properties for the calendar month ending immediately prior to such delivery date; provided that no Monthly NOI Certificate will be required for any individual Property until the next delivery date following the 90th day after the Completion Date for such Property, on which delivery date a Monthly NOI Certificate for such Property for each of the immediately preceding three calendar months shall be delivered to the Agent by the Lessee.
(m) [intentionally omitted].
(n) Each Credit Party hereby covenants and agrees to cause each Subsidiary of such Credit Party that becomes a Guarantor under the Lessee Credit Agreement after the Initial Closing Date pursuant to Section 7.19 thereof, to execute a Joinder Agreement and to observe the terms of Sections 5.8(a)-(d) of this Agreement, all within thirty (30) days of the joinder of such Subsidiary as a Guarantor under the Lessee Credit Agreement.
(o) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when such Credit Party gains such knowledge.
(p) Until all of the obligations under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Commitments and the Holder Commitments terminated unless consent has been obtained from the Majority Secured Parties, each Credit Party will:
(i) except as permitted by the express provisions of the Lessee Credit Agreement, preserve and maintain its separate legal existence and all rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation (or partnership, limited liability company or other such similar entity, as the case may be) and authorized to do business in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative Agreements and pay and perform (A) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property, and (B) all other indebtedness, obligations and liabilities in accordance with customary trade practices, which if not paid would have a Material Adverse Effect; provided that any Credit Party may contest any item described in this Section 8.3(p)(ii) in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP;
(iii) to the extent failure to do so would have a Material Adverse Effect, observe and remain in compliance with all applicable Laws and maintain in full force and effect all Governmental Actions, in each case applicable to the conduct of its business; keep in full force and effect all licenses, certifications or accreditations necessary for any Property to carry on its business; and not permit the termination of any insurance reimbursement program available to any Property; and
(iv) provided that the Agent, the Lenders and the Holders use reasonable efforts to minimize disruption to the business of the Credit Parties permit representatives of the Agent or any Lender or Holder, from time to time, to visit and inspect its properties; inspect, audit and make extracts from its books, records and files, including without limitation management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects.
(q) Lessee shall perform any and all personal property components obligations of any Lessor under, and all Propertiescause Lessor to otherwise remain in full compliance with, the terms and provisions of each Ground Lease, if any.
(r) [intentionally omitted].
(s) The Lessee shall deliver to the Agent a copy of the final certificate of occupancy for each Property within 180 days of the Completion Date for such Property.
(t) The Lessee shall submit the interest rate/holder yield selection notice in the form set forth in Exhibit N as required from time to time pursuant to the Credit Agreement and the Trust Agreement.
Appears in 1 contract
Samples: Participation Agreement (Shurgard Storage Centers Inc)
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens in favor of the Agent respecting the various personal property, fixtures and real property described therein in favor of to secure the AgentOwner Trustee's obligations under this Agreement and under the other Operative Agreements. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.5 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) after the occurrence of an Event of Default.
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantorother Credit Parties. Without limitation, such obligations of the Lessee shall include commitment without limitation arrangement fees, unused administrative fees, prepayment penaltiesfacility fees, breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(g) The Lessee hereby covenants and agrees that Equipment respecting any individual Property (exclusive of fixtures which are integral and necessary for the structure and/or mechanical operation of such Property) shall at no time constitute in excess of fifteen percent (15%) of the aggregate Advances respecting such Property funded at such time under the Operative Agreements.
(h) The Lessee hereby covenants and agrees that (i) as of Completion (A) the Property Cost for each individual parcel of the Property shall be no less than $750,000 and (B) each parcel of the Property shall be a Permitted Facility and (ii) the aggregate Property Cost for all Properties at any time shall not exceed $35,000,000.
(i) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at 105 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxxx Xxxxxx, Tennessee or if it shall change its name.
(j) The Lessee hereby covenants and agrees that the aggregate Property Cost of Properties purchased for any reason by the Lessee pursuant to the Purchase Option of Lessee and/or sold for any reason to any Person pursuant to the Sale Option of Lessee prior to the Expiration Date shall not exceed the lesser of (i) thirty-three percent (33%) of the aggregate Property Cost (up to and including the date any such Election Date is specified by Lessee) for all Properties then subject to the Lease and all personal property components other properties which were previously Properties subject to the Lease and (ii) Twelve Million Dollars ($12,000,000). To the extent any such purchase pursuant to the Purchase Option and/or sale pursuant to the Sale Option shall occur prior to the Construction Period Termination Date, then the aggregate amount paid to the Agent (for the benefit of the Financing Parties with respect to any such Purchase Option and/or Sale Option) shall remain available for future Advances until the Construction Period Termination Date; provided in no event shall any Lender be obligated to lend more than its Lender Commitment and all Propertiesin no event shall any Holder be obligated to advance more than its Holder Commitment.
(k) The Lessee shall furnish to the Agent at such times as required under the Lessee Credit Agreement the financial statements and other information required to be delivered pursuant to Section 5.1 and Section 5.2
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person (except for Excepted Payments) shall instead be paid directly to the Agent (on behalf of the Person entitled thereto) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantorother Credit Parties. Without limitation, such obligations of the Credit Parties shall include without limitation arrangement fees, administrative fees, participation fees, commitment fees, unused fees, breakage costs, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(e) The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) after the occurrence of an Event of Default.
(f) Consistent with [Intentionally Omitted].
(g) At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor) any and all personal property components of any and all Properties).
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such LiensLiens until such liens are subject to release in accordance with this Agreement and the other Operative Agreements. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person entitled thereto) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person entitled thereto) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative Agreements, any and all payment obligations owing from time to time under the Operative Agreements to the Agent, any Lender or any Holder shall (without further action) be deemed to be Supplemental Rent obligations payable by Lessee and guaranteed by the Guarantor. Without limitation, such obligations shall include commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(f) Consistent with the terms and conditions of the Security Agreement, each of the Construction Agent and Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make available to the Agent (on behalf of Lessor) any and all personal property components of any and all Properties.
Appears in 1 contract
Samples: Participation Agreement (Veritas Software Corp /De/)
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage InstrumentsDocuments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Collateral Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such LiensLiens until such Liens are subject to release in accordance with this Agreement and the other Related Documents. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements Related Documents and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans Advances and the Certificateholder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments Documents have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Person entitled thereto) and any and all other amounts of any kind or type under any of the Operative Agreements Related Documents due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Collateral Agent (excluding Excepted Payments which shall be payable to each Person entitled thereto) or as the Collateral Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Article 12 hereof, (ii) all rights of the Lessor under the Master Lease shall be exercised by the Collateral Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Collateral Agent for the benefit of the Lessor, to also to be delivered at the same time to the Agent and each Holder.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, Related Document except in each case, obtaining the prior written consent accordance with Section 14.2 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements Related Documents (other than the Revolving Credit Agreement and the Revolving Credit Notes) by any Credit Party or the Lessor to the Collateral Agent, the Agent, any Lender Lender, any Certificateholder or any Holder the Lessor shall (without further action) be deemed to be Supplemental Additional Rent obligations payable by the Lessee and guaranteed by the Guarantor. Without limitation, such obligations shall include commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto other Credit Parties in connection with the transactions contemplated by the Operative Agreements.
(f) Consistent accordance with the terms and conditions of this Agreement and the Security Agreementother Related Documents.
(e) At any time the Lessor or the Collateral Agent is entitled under the Related Documents to possession of the Property or Equipment or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Collateral Agent (on behalf of the Lessor).
(f) The Lessee hereby covenants and agrees that as of the Completion Date the Property Cost for the Property shall be not greater than $65,000,000 or such greater amount to which the Total Funding Commitments shall have been increased in accordance with Section 5.10 hereof.
(g) The Lessee hereby covenants and agrees that it shall give prompt notice to the Collateral Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning its accounts or contract rights are kept, shall cease to be located at 12740 Xxx Xxxxxxxx Xxxx, Sylmar, California 91342 or if it shall change its name.
(h) Until all the obligations of the Credit Parties under the Related Documents (other than indemnity claims unasserted as of the Expiration Date) have been finally and indefeasibly paid and satisfied in full, the Lender Commitments and the Certificateholder Commitments terminated and the Lease Term and all Renewal Terms have expired or been terminated, then unless consent has been obtained from the Majority Secured Parties, the Parent Guarantor and the Lessee will furnish or cause to be furnished to each Certificateholder, each Lender, the Agent and the Collateral Agent at their respective addresses specified in Section 14.3 of this Agreement, or such other office as may be designated by any such Certificateholder, Lender, Agent or the Collateral Agent from time to time, contemporaneously with the delivery of the financial information required to be delivered pursuant to Section 13(e)(i) or (ii) of the Parent Guaranty, a compliance certificate duly executed by a Responsible Officer of the Parent Guarantor in the form of Exhibit J.
(i) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement and the Master Lease shall not impair or in any way diminish the obligations of the Construction Agent or the rights of the Lessor under the Construction Agency Agreement.
(j) Each Credit Party hereby covenants and agrees to cause each Domestic Subsidiary formed or acquired after the Effective Date that is not an Inactive Subsidiary shall comply with the provisions of Section 5.8.
(k) Each Credit Party shall promptly notify the Collateral Agent, or cause the Collateral Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Potential Default or Event of Default. In any event, such notice shall be provided to the Collateral Agent within ten (10) days of when such Credit Party gains such knowledge.
(l) Until all of the obligations under the Related Documents, other than indemnity claims unasserted as of the Final Date, have been finally and indefeasibly paid and satisfied in full and the Lender Commitments and the Certificateholder Commitments terminated, each Credit Party will observe, perform and comply with all of the provisions, terms, covenants and obligations to be so observed, performed or complied with by or on behalf of such Credit Party under the other Related Documents.
(m) The Lessee shall perform any and all personal property components obligations of the Lessor under, and cause the Lessor to otherwise remain in full compliance with, the terms and provisions of the Ground Sublease, if any; provided, however, that the Lessee shall not be obligated to perform any and all Propertiesobligations of the Lessor that are not reasonably capable of being performed solely due to the gross negligence or willful misconduct of the Lessor, the Agent or the Collateral Agent.
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with to satisfy their covenants herein or in the other Operative Agreements Agreements, including without limitation at any time and shall from time to time promptly and duly execute executing and deliver delivering any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) from time to time after the occurrence and during the continuance of an Event of Default.
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by Lessee and guaranteed by the GuarantorLessee. Without limitation, such obligations shall include commitment without limitation arrangement fees, administrative fees, participation fees, facility fees, unused fees, prepayment penalties, breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble (in the case of tangible personal property) and make the same available to the Agent (on behalf of the Lessor).
(g) The Lessee hereby covenants and agrees that respecting all Properties in the aggregate subject to the Lease at any time (and without respect to analysis on a Property by Property basis), (i) Non-Integral Equipment financed under the Operative Agreements may constitute up to, but not to exceed, fifteen percent (15%) of the aggregate Advances extended at or prior to such time and (ii) Equipment (including without limitation such Non-Integral Equipment) financed under the Operative Agreements may constitute up to, but not to exceed fifty percent (50%) of the aggregate Advances extended at or prior to such time.
(h) The Lessee hereby covenants and agrees that as of Completion (i) the Property Cost for each individual parcel of the Property shall be no less than $2,000,000 and (ii) each parcel of the Property shall be a Permitted Facility.
(i) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at Houston, Xxxxxx County, Texas or if it shall change its name.
(j) The Lessee hereby covenants and agrees that the aggregate Property Cost of Properties purchased for any reason by the Lessee pursuant to its Purchase Option prior to the Expiration Date shall not exceed ten percent (10%) of the aggregate Property Cost for all Properties funded during the Commitment Period.
(k) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement and the Lease shall not impair or in any way diminish the obligations of the Construction Agent and/or the rights of the Lessor under the Agency Agreement.
(l) Within forty-five (45) days after the end of each of the first three fiscal quarters of each fiscal year of the Lessee (beginning with the fiscal quarter ending March 31, 1998) and within one-hundred (100) days after the close of each fiscal year of the Lessee (beginning with the fiscal year ending December 31, 1997), the Lessee hereby covenants and agrees to deliver to the Agent, the Lenders and the Holders a Compliance Certificate and a Covenant Compliance Worksheet reflecting the computation of the financial covenants incorporated by reference into the Lease pursuant to Section 28.1 of the Lease as of the last day of the period covered by such financial statements.
(m) Each Credit Party agrees that the Tranche A Loans, the Tranche B Loans and the Certificates will be treated as debt of AOR for purposes of calculating financial covenants.
(n) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when an officer of such Credit Party gains such knowledge.
(o) Until all of the obligations under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Commitments and the Holder Commitments terminated unless consent has been obtained from the Majority Secured Parties, each Credit Party will:
(i) except as permitted by the express provisions of the Lessee Credit Agreement, preserve and maintain its separate legal existence and all personal property components rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation (or partnership, limited liability company or other such similar entity, as the case may be) and authorized to do business in each jurisdiction in which the failure to do so qualify shall have or could reasonably be expected to have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative Agreements and pay or perform (A) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property, and (B) all Propertiesother indebtedness, obligations and liabilities in accordance with customary trade practices, which in the case of each of (A) and (B) if not paid shall have or could reasonably be expected to have a Material Adverse Effect; provided, that any Credit Party may contest any item described in this Section 8.3(o)(ii) in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP;
(iii) do each of the following to the extent failure to do so shall have or could reasonably be expected to have a Material Adverse Effect: observe and remain in compliance with all applicable Laws and maintain in full force and effect all Governmental Actions, in each case applicable to the conduct of its business; keep or cause to be kept in full force and effect all licenses, certifications or accreditations necessary for any Permitted Facility to carry on its business; and
(iv) provided, that the Agent, the Lenders and the Holders use reasonable efforts to minimize disruption to the business of the Credit Parties, permit representatives of the Agent or any Lender or any Holder, from time to time upon reasonable notice and during normal banking hours to do each of the following: to visit and inspect its properties; inspect, audit and make extracts from its books, records and files, including without limitation management letters prepared by independent accountants; and discuss with its principal officers, and (in the presence of its officers) its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects.
Appears in 1 contract
Samples: Participation Agreement (American Oncology Resources Inc /De/)
Credit Party Covenants, Consent and Acknowledgment. The Credit Parties, jointly and severally, covenant and agree that until Payment in Full, the Credit Parties shall comply at all times with the following covenants:
(a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection accordance with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably requestSection 12.11 hereof.
(b) Each Lessor Party hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans Lessor Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments Documents have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to the Lessor Party or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable by any Credit Party to any Lessor Party (including pursuant to Section 5.3(c) of the Lessor or Agency Agreement and Section 17.6(c) of the Owner Trustee Lease) shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to the Lessor Party or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor Parties under the Lease (except in respect of Excepted Payments and as provided in Section 12.4) shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessorany Lessor Party, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]From and after the Rent Commencement Date, the Lessee hereby covenants and agrees to reimburse the Agent for any Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting the Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent and/or any Lessor Party and (ii) after the occurrence and continuance of an Event of Default. To the extent any such Appraisal or reappraisal is deemed necessary by the Agent prior to the Rent Commencement Date, such shall be paid for as a Transaction Expense.
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Financing Party or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the GuarantorGuarantors, which is subject to the funding requirements described in this Agreement prior to the Rent Commencement Date. Without limitation, such obligations of the Credit Parties shall include commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative AgreementsTransaction Expenses.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security AgreementProperty or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble the Equipment and make the same available to the Agent (on behalf of the Lessor) at the Property.
(g) Each of the Construction Agent and the Lessee hereby covenants and agrees that (i) each Indemnified Person will, at all times, be covered to the extent so provided in Article XIV of the Lease, as additional insured or loss payee, as the case may be, under the insurance policies required to be maintained by the Construction Agent or the Lessee pursuant to Section 2.6(e) of the Agency Agreement and Article XIV of the Lease, or pursuant to the insurance policies that the Construction Agent or the Lessee requires any relevant contractor or subcontractor to carry, for any Claim arising out of the acts or omissions of any of the contractors or subcontractors of the Construction Agent or the Lessee and (ii) each insurance policy that is carried by the Construction Agent or the Lessee pursuant to the Agency Agreement or the Lease (A) shall at all times contain a waiver of subrogation clause pursuant to which the relevant insurers waive any and all personal rights to make any claim against any such additional insured or loss payee with respect to any payments made, or any obligation of such insureds under, any such policy and (B) shall at all times cover each such additional insured or loss payee for any and all Claims relating to the Property or the transactions contemplated by the Operative Agreements. The Construction Agent and the Lessee will be liable to each such additional insured or loss payee, on a full recourse basis, for any breach of the foregoing covenants and agreements.
(h) The Lessee hereby covenants and agrees that as of the Completion, the Property shall be the Permitted Facility.
(i) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the location of the Lessee for purposes of the UCC shall cease to be in the State of Ohio, if the Lessee’s principal place of business shall cease to be located at 0000 X. Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx Xxxxxx, XX 00000 or if the Lessee’s chief executive office or office where the records concerning the account or contract rights relating to the Property are kept shall cease to be located at 0000 X. Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx Xxxxxx, XX 00000 or if it shall change its name. The Lessee shall at all times maintain a mailing address at: AVDC, Inc., c/o Big Lots, Inc., 0000 X. Xxxxxx-Xxxxxxxxx Xxxx, Xxxxxxxx, XX 00000.
(j) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement and under the Lease shall not impair or in any way diminish the obligations of the Construction Agent and/or the rights of the Lessor under the Agency Agreement.
(k) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon a Responsible Officer of such Credit Party gaining knowledge of the occurrence of any Default or Event of Default (whether material or not) which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when such Credit Party gains such knowledge.
(l) The Lessee shall cause all financing statements and continuation statements and any other necessary documents covering the right, title and interest of the Agent as agent for the Secured Parties with regard to the Collateral to be promptly produced, to be submitted to the Agent for review and after confirmation thereof by the Agent, to be filed for recordation in such manner and in such places as may be required by law fully to preserve and protect the right, title and interest of the Agent as agent for the Secured Parties hereunder to all property components comprising the Collateral. The Lessee shall deliver to the Agent file-stamped copies of, or filing receipts for, any document recorded, registered or filed as provided above, as soon as available following such recording, registration or filing. The Lessor shall cooperate fully with the Lessee in connection with the obligations of the Lessee set forth above and will execute or cause the execution (at the expense of the Lessee, which the Lessee agrees to pay) of any and all Propertiesdocuments reasonably required to fulfill the intent of this Section 8.3(l).
(m) Each Credit Party acknowledges and agrees that such Credit Party shall at no time be an EEA Financial Institution.
(n) The Lessee covenants and agrees to deliver to the Agent, on or before the Commencement Date, the Lease and a memorandum thereof (or short form lease) (such memorandum or short form lease to be in the form attached to the Lease as Exhibit B or in such other form as is acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording).
(o) In addition to, and not in limitation of, the requirements of Article XIV of the Lease, Lessee will maintain insurance against loss or damage which to the Lessee’s knowledge is similar to the kinds and in the amounts customarily maintained by corporations engaged in the same or similar businesses and which are similarly situated to the Lessee, the failure of which would be reasonably likely to have a Material Adverse Effect.
Appears in 1 contract
Samples: Operative Agreements (Big Lots Inc)
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person (except for Excepted Payments) shall instead be paid directly to the Agent (on behalf of the Person entitled thereto) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Lender, any Holder or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantorother Credit Parties. Without limitation, such obligations of the Credit Parties shall include without limitation arrangement fees, administrative fees, participation fees, commitment fees, unused fees, breakage costs, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(e) The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, the Trust Company, any Lender and/or any Holder and (ii) after the occurrence of an Event of Default.
(f) Consistent with [Intentionally Omitted].
(g) At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security Agreementa Property or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(h) [Intentionally Omitted].
(i) The Lessee hereby covenants and agrees that as of Completion (i) the Property Cost for each individual parcel of the Property shall be (A) no less than $5,000,000 and (B) no more than $200,000,000 and (ii) each parcel of the Property shall be a Permitted Facility.
(j) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee’s location for purposes of the UCC shall cease to be Xxx XxxxxxXxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000, and the Lessee shall specify its new location for purposes of the UCC in such notice. The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee’s principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at Xxx XxxxxxXxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000 or if it shall change its name, and the Lessee shall specify its new principal place of business, chief executive office, such other office where the records concerning the accounts or control rights relating to any Property are kept and/or its new name in such notice.
(k) If there is more than one Property, unless the Agent otherwise agrees in writing, the Lessee hereby covenants and agrees that the aggregate Property Cost of Properties purchased for any reason by the Lessee prior to the Expiration Date shall not exceed ten percent (10%) of the aggregate Property Cost for all Properties funded during the Commitment Period.
(l) [Intentionally Omitted].
(m) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement and the Lease shall not impair or in any way diminish the obligations of the Construction Agent and/or the rights of the Lessor under the Agency Agreement.
(n) [Intentionally Omitted].
(o) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when such Credit Party gains such knowledge.
(p) Until all of the obligations under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Commitments and the Holder Commitments terminated unless consent has been obtained from the Majority Secured Parties, each Credit Party will:
(i) preserve and maintain its separate legal existence and all rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation (or partnership, limited liability company or other such similar entity, as the case may be) and authorized to do business in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative Agreements and pay and perform (A) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property, and (B) all other indebtedness, obligations and liabilities in accordance with customary trade practices, which if not paid would have a Material Adverse Effect; provided that any Credit Party may contest any item described in this Section 8.3(p)(ii) in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP;
(iii) to the extent failure to do so would have a Material Adverse Effect, observe and remain in compliance with all applicable Laws and maintain in full force and effect all Governmental Actions, in each case applicable to the conduct of its business; keep in full force and effect all licenses, certifications or accreditations necessary for any Property to carry on its business; and not permit the termination of any insurance reimbursement program available to any Property; and
(iv) provided that the Agent, the Lenders and the Holders use reasonable efforts to minimize disruption to the business of the Credit Parties and provide reasonable notice thereof unless a Lease Default or Lease Event of Default has occurred and is continuing, permit representatives of the Agent or any Lender or Holder, from time to time, to visit and inspect its properties; inspect, audit and make extracts from its books, records and files, including without limitation management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects.
(q) [Intentionally Omitted].
(r) Lessee shall perform any and all personal property components obligations of Lessor under, and cause Lessor to otherwise remain in full compliance with, the terms and provisions of each Ground Lease, if any.
(s) Promptly after obtaining any required architectural approvals by any business park or any other applicable entity with oversight responsibility for the applicable Improvements, the Construction Agent shall deliver to the Agent copies of the same.
(t) [Intentionally Omitted].
(u) The Lessee authorizes the Agent to file fixture filings and/or financing statements with respect to any collateral under or pursuant to any Operative Agreement without the signature of the Lessee in such form and in such filing offices as the Agent reasonably determines appropriate to perfect the security interests of the Agent under the applicable Operative Agreements.
(v) As soon as available, and in any event within ten (10) days of receipt of each statement or any correspondence regarding the Cash Collateral Account or at any other time requested by the Agent, Lessee shall deliver to the Agent a copy of such statement or correspondence.
(w) On the third anniversary of the Initial Closing Date, the Lessee shall purchase all of the Tranche A Notes from each of the Tranche A Lenders as of such date for an amount equal to the sum of (i) the then outstanding Tranche A Loans, (ii) all accrued but unpaid interest on the Tranche A Loans and to the extent the same is not duplicative of the amounts payable under (i) and (ii) above, all other Rent and other amounts then due and payable or accrued in favor of the Tranche A Lenders under the Agency Agreement, Lease and/or under any other Operative Agreement (including without limitation amounts under Sections 11.1 and 11.2 of the Participation Agreement and all Propertiescosts and expenses of Lessor regarding such transfer of the Tranche A Notes).
(x) In the event Lessee or Lessor would otherwise be required to transfer or assign any license, certification or other similar document, including without limitation pursuant to Article 22 of the Lease, but is prohibited by any Legal Requirement, then Lessee shall, at Lessee’s expense, take all reasonable actions requested by the Agent, Lessor or any third party transferee of the Property to assist such Person in obtaining all such licenses, certifications and other similar documents which are necessary or typical, for the operation of a hospital facility similar to the Property or which were held previously with respect to the Property.
(y) Lessee shall promptly, but in no event more than five (5) Business Days after a change in Rating deliver to the Agent written notice of such Rating change.
Appears in 1 contract
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner TrusteeBorrower, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agenttherein. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Lessor Advance are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Lessor or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Lessor or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent in accordance with the terms of the Intercreditor Agreement and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time by any Credit Party under the Operative Agreements Lease by any Person to the AgentLessor, the Agent (whether as assignee of Lessor or otherwise), any Lender Lender, Lessor or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the Guarantorother Credit Parties. Without limitation, such obligations of the Credit Parties shall include commitment without limitation arrangement fees, administrative fees, unused fees, prepayment penaltiesbreakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative AgreementsLease.
(e) The Lessee hereby covenants and agrees to cause an Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting any Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent, the Lessor, and/or any Lender and (ii) after the occurrence and continue of an Event of Default and for so long as the same is continuing.
(f) Consistent The Lessee hereby covenants and agrees that, except for amounts payable as Basic Rent, any and all payment obligations owing from time to time under the Lease by any Person to the Lessor, the Agent (whether as assignee of Lessor or otherwise), any Lender or any other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee. Without limitation, such obligations of the Lessee shall include the Supplemental Rent obligations pursuant to this Section 8.3(f), Section 3.3 of the Lease, arrangement fees, administrative fees, participation fees, commitment fees, prepayment penalties, breakage costs, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the terms transactions contemplated by the Lease.
(g) At any time the Lessor or the Agent is entitled under the Operative Agreements to possession of a Property or any component thereof, and conditions of the Security Agreement, each of the Construction Agent and Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make the same available to the Agent (on behalf of the Lessor).
(h) [Intentionally Reserved].
(i) [Intentionally Reserved].
(j) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the Lessee's principal place of business or chief executive office, or the office where the records concerning the accounts or contract rights relating to any Property are kept, shall cease to be located at 0000 X. Xxxxxxxxx Xxx., Xxxxxxxxxxxx, XX 00000 or if it shall change its name or jurisdiction of incorporation and/or location for purposes of the UCC.
(k) [Intentionally Reserved].
(l) [Intentionally Reserved].
(m) [Intentionally Reserved].
(n) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon such Credit Party gaining knowledge of the occurrence of any Default or Event of Default which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when such Credit Party gains such knowledge.
(o) Until all of the obligations under the Operative Agreements have been finally and indefeasibly paid and satisfied in full and the Lender Commitments and the Lessor Commitment terminated unless consent has been obtained pursuant to the Intercreditor Agreement, each Credit Party will:
(i) except as permitted by the express provisions of the Lessee Credit Agreement, preserve and maintain its separate legal existence and all personal property components rights, franchises, licenses and privileges necessary to the conduct of its business, and qualify and remain qualified as a foreign corporation (or partnership, limited liability company or other such similar entity, as the case may be) and authorized to do business in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect;
(ii) pay and perform all obligations of the Credit Parties under the Operative Agreements and pay and perform (A) all taxes, assessments and other governmental charges that may be levied or assessed upon it or any of its property, and (B) all other indebtedness, obligations and liabilities in accordance with customary trade practices, which if not paid would have a Material Adverse Effect; provided that any Credit Party may contest any item described in this Section 8.3(p)(ii) in good faith so long as adequate reserves are maintained with respect thereto in accordance with GAAP;
(iii) to the extent failure to do so would have a Material Adverse Effect, observe and remain in compliance with all applicable Laws and maintain in full force and effect all Governmental Actions, in each case applicable to the conduct of its business; keep in full force and effect all licenses, certifications or accreditations necessary for any Property to carry on its business; and not permit the termination of any insurance reimbursement program available to any Property; and
(iv) provided that the Agent, the Lenders and all the Lessor use reasonable efforts to minimize disruption to the business of the Credit Parties, permit representatives of the Agent or any Lender or Lessor, from time to time, to visit and inspect its Properties; inspect, audit and make extracts from its books, records and files, including without limitation management letters prepared by independent accountants; and discuss with its principal officers, and its independent accountants, its business, assets, liabilities, financial condition, results of operations and business prospects.
Appears in 1 contract
Samples: Participation Agreement (Pep Boys Manny Moe & Jack)
Credit Party Covenants, Consent and Acknowledgment. (a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably request.
(b) The Lessor hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans and the Holder Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable to the Lessor or the Owner Trustee any Person shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to each Holder or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor under the Lease shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is delivered, or is required to be delivered, to the Lessor, to also to be delivered at the same time to the Agent and each Holder.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, in each case, obtaining the prior written consent of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j).
(d) [Intentionally Omitted]
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative Agreements, any and all payment obligations owing from time to time under the Operative Agreements to the Agent, any Lender or any Holder shall (without further action) be deemed to be Supplemental Rent obligations payable by Lessee and guaranteed by the Guarantor. Without limitation, such obligations shall include commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative Agreements.
(f) Consistent with the terms and conditions of the Security Agreement, each of the Construction Agent and Lessee hereby covenants and agrees, at its own cost and expense, to assemble and make available to the Agent (on behalf of Lessor) any and all personal property components of any and all Properties.,
Appears in 1 contract
Samples: Participation Agreement (Sunrise Assisted Living Inc)
Credit Party Covenants, Consent and Acknowledgment. The Credit Parties, jointly and severally, covenant and agree that until Payment in Full, the Credit Parties shall comply at all times with the following covenants:
(a) Each Credit Party acknowledges and agrees that the Owner Trustee, pursuant to the terms and conditions of the Security Agreement and the Mortgage Instruments, shall create Liens respecting the various personal property, fixtures and real property described therein in favor of the Agent. Each Credit Party hereby irrevocably consents to the creation, perfection and maintenance of such Liens. Each Credit Party shall, to the extent reasonably requested by any of the other parties hereto, cooperate with the other parties in connection accordance with their covenants herein or in the other Operative Agreements and shall from time to time duly execute and deliver any and all such future instruments, documents and financing statements (and continuation statements related thereto) as any other party hereto may reasonably requestSection 12.11 hereof.
(b) Each Lessor Party hereby instructs each Credit Party, and each Credit Party hereby acknowledges and agrees, that until such time as the Loans Lessor Advances are paid in full and the Liens evidenced by the Security Agreement and the Mortgage Instruments Documents have been released (i) any and all Rent (excluding Excepted Payments which shall be payable to the Lessor Party or other Person as appropriate) and any and all other amounts of any kind or type under any of the Operative Agreements due and owing or payable by any Credit Party to any Lessor Party (including pursuant to Section 5.3(c) of the Lessor or Agency Agreement and Section 17.6(c) of the Owner Trustee Lease) shall instead be paid directly to the Agent (excluding Excepted Payments which shall be payable to the Lessor Party or other Person as appropriate) or as the Agent may direct from time to time for allocation and distribution in accordance with the procedures set forth in Section 8.7 hereof, (ii) all rights of the Lessor Parties under the Lease (except in respect of Excepted Payments and as provided in Section 12.4) shall be exercised by the Agent and (iiiii) each Credit Party shall cause all notices, certificates, financial statements, communications and other information which is are delivered, or is are required to be delivered, to the Lessorany Lessor Party, to also to be delivered at the same time to the Agent and each HolderAgent.
(c) No Credit Party shall consent to or permit any amendment, supplement or other modification of the terms or provisions of any Operative Agreement without, except in each case, obtaining the prior written consent accordance with Section 12.4 of the Agent and, to the extent required by the proviso at the end of Section 10.2(j) hereof, each of the Holders. The Lessee acknowledges that the actions of the Owner Trustee are subject to the consent of the Agent as set forth in Section 10.2(j)this Agreement.
(d) [Intentionally Omitted]From and after the Rent Commencement Date, the Lessee hereby covenants and agrees to reimburse the Agent for any Appraisal or reappraisal (in form and substance satisfactory to the Agent and from an appraiser selected by the Agent) to be issued respecting the Property as requested by the Agent from time to time (i) at each and every time as such shall be required to satisfy any regulatory requirements imposed on the Agent and/or any Lessor Party and (ii) after the occurrence and continuance of an Event of Default. To the extent any such Appraisal or reappraisal is deemed necessary by the Agent prior to the Rent Commencement Date, such shall be paid for as a Transaction Expense.
(e) Each Credit Party hereby covenants and agrees that, except for amounts payable as Basic Rent and as otherwise expressly specified in the Operative AgreementsRent, any and all payment obligations owing from time to time under the Operative Agreements by any Person to the Agent, any Lender Financing Party or any Holder other Person shall (without further action) be deemed to be Supplemental Rent obligations payable by the Lessee and guaranteed by the GuarantorGuarantors, which is subject to the funding requirements described in this Agreement prior to the Rent Commencement Date. Without limitation, such obligations of the Credit Parties shall include commitment fees, unused fees, prepayment penalties, indemnities, trustee fees and transaction expenses incurred by the parties hereto in connection with the transactions contemplated by the Operative AgreementsTransaction Expenses.
(f) Consistent with At any time the terms and conditions Lessor or the Agent is entitled under the Operative Agreements to possession of the Security AgreementProperty or any component thereof, each of the Construction Agent and the Lessee hereby covenants and agrees, at its own cost and expense, to assemble the Equipment and make the same available to the Agent (on behalf of the Lessor) at the Property.
(g) Each of the Construction Agent and the Lessee hereby covenants and agrees that (i) each Indemnified Person will, at all times, be covered to the extent so provided in Article XIV of the Lease, as additional insured or loss payee, as the case may be, under the insurance policies required to be maintained by the Construction Agent or the Lessee pursuant to Section 2.6(e) of the Agency Agreement and Article XIV of the Lease, or pursuant to the insurance policies that the Construction Agent or the Lessee requires any relevant contractor or subcontractor to carry, for any Claim arising out of the acts or omissions of any of the contractors or subcontractors of the Construction Agent or the Lessee and (ii) each insurance policy that is carried by the Construction Agent or the Lessee pursuant to the Agency Agreement or the Lease (A) shall at all times contain a waiver of subrogation clause pursuant to which the relevant insurers waive any and all personal rights to make any claim against any such additional insured or loss payee with respect to any payments made, or any obligation of such insureds under, any such policy and (B) shall at all times cover each such additional insured or loss payee for any and all Claims relating to the Property or the transactions contemplated by the Operative Agreements. The Construction Agent and the Lessee will be liable to each such additional insured or loss payee, on a full recourse basis, for any breach of the foregoing covenants and agreements.
(h) The Lessee hereby covenants and agrees that as of the Completion, the Property shall be the Permitted Facility.
(i) The Lessee hereby covenants and agrees that it shall give prompt notice to the Agent if the location of the Lessee for purposes of the UCC shall cease to be in the State of Ohio, if the Lessee’s principal place of business shall cease to be located at 000 Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx County, OH 43228-5311or if the Lessee’s chief executive office or office where the records concerning the account or contract rights relating to the Property are kept shall cease to be located at 000 Xxxxxxxx Xxxx, Columbus, Franklin County, OH 43228-5311 or if it shall change its name. The Lessee shall at all times maintain a mailing address at: AVDC, Inc., c/o Big Lots, Inc., 000 Xxxxxxxx Xxxx, Columbus, OH 43228-5311.
(j) The Lessee hereby covenants and agrees that the rights of the Lessee under this Agreement and under the Lease shall not impair or in any way diminish the obligations of the Construction Agent and/or the rights of the Lessor under the Agency Agreement.
(k) Each Credit Party shall promptly notify the Agent, or cause the Agent to be promptly notified, upon a Responsible Officer of such Credit Party gaining knowledge of the occurrence of any Default or Event of Default (whether material or not) which is continuing at such time. In any event, such notice shall be provided to the Agent within ten (10) days of when such Credit Party gains such knowledge.
(l) The Lessee shall cause all financing statements and continuation statements and any other necessary documents covering the right, title and interest of the Agent as agent for the Secured Parties with regard to the Collateral to be promptly produced, to be submitted to the Agent for review and after confirmation thereof by the Agent, to be filed for recordation in such manner and in such places as may be required by law fully to preserve and protect the right, title and interest of the Agent as agent for the Secured Parties hereunder to all property components comprising the Collateral. The Lessee shall deliver to the Agent file-stamped copies of, or filing receipts for, any document recorded, registered or filed as provided above, as soon as available following such recording, registration or filing. The Lessor shall cooperate fully with the Lessee in connection with the obligations of the Lessee set forth above and will execute or cause the execution (at the expense of the Lessee, which the Lessee agrees to pay) of any and all Propertiesdocuments reasonably required to fulfill the intent of this Section 8.3(l).
(m) Each Credit Party acknowledges and agrees that such Credit Party shall at no time be an EEA Financial Institution.
(n) The Lessee covenants and agrees to deliver to the Agent, on or before the Commencement Date, the Lease and a memorandum thereof (or short form lease) (such memorandum or short form lease to be in the form attached to the Lease as Exhibit B or in such other form as is acceptable to the Agent, with modifications as necessary to conform to applicable state law, and in form suitable for recording).
(o) In addition to, and not in limitation of, the requirements of Article XIV of the Lease, Lessee will maintain insurance against loss or damage which to the Lessee’s knowledge is similar to the kinds and in the amounts customarily maintained by corporations engaged in the same or similar businesses and which are similarly situated to the Lessee, the failure of which would be reasonably likely to have a Material Adverse Effect.
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