Mortgaged Properties. The Collateral Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion): (i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent: (ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property; (iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent; (iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above; (v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above; (vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent; (vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested; (viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and (ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
Appears in 3 contracts
Samples: Term Loan Agreement (CDW Finance Corp), Term Loan Agreement (CDW Corp), Term Loan Agreement (CDW Finance Corp)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 On or prior to the date that is 90 days after the Closing Funding Date (unless extended or such longer period as may be agreed to by the Administrative Agent in its sole discretion):), the Administrative Agent shall have received, with respect to each Mortgaged Property as of the Funding Date set forth on Schedule B hereto, either:
(a) (i) an amendment (a “Mortgage encumbering each Mortgaged Property in favor of Amendment”) to the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each existing Mortgage with respect to such Mortgaged Property is situatedreflecting the amendment of the Obligations contemplated hereby, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:, which Mortgage Amendment shall be duly executed and delivered by an authorized officer of each party thereto and in form suitable for filing and recording in all filing or recording offices required to maintain a valid first lien on the property described therein;
(ii) with a fully paid modification and date-down endorsement to any existing Title Policy, to the extent available in the applicable jurisdiction, insuring the Mortgage in respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated as modified by the Mortgage with respect Amendment to such Mortgaged Propertybe a valid first and subsisting Lien on the property described therein, free and clear of all Liens, other than Permitted Encumbrances;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and and/or instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company title companies to issue the title policy/ies and endorsements to the Title Policy contemplated in item (ii) above;; and
(viv) evidence reasonably acceptable to the Collateral Agent opinion of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required local counsel for the recording of Loan Parties in the Mortgages and issuance of state in which the title policies referred to above;
(vi) Mortgaged Property is located, with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any enforceability and validity of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien applicable Mortgage in respect of the Mortgaged Property as modified by the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement Amendment in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent; or
(b) written confirmation (which confirmation may be provided in the form of an electronic mail acknowledgment in form and substance reasonably satisfactory to the Administrative Agent) from local counsel in the jurisdiction in which the applicable Mortgaged Property is located substantially to the effect that no amendment to the existing Mortgage is necessary for such Mortgage to remain in full force and effect and to secure the Secured Obligations, as modified by the transactions contemplated by this Amendment.
Appears in 3 contracts
Samples: Credit Agreement (Element Solutions Inc), Credit Agreement (Element Solutions Inc), Credit Agreement (Element Solutions Inc)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 (a) Within fifteen days after of the Closing Date Date, the Borrower shall execute and deliver to the Agent mortgages and/or deeds of trust (unless extended by collectively, the Administrative Agent "Mortgages"), in its sole discretion):form acceptable to the Agent, with respect to the four parcels of real property identified on Schedule I attached hereto (collectively, the "Mortgaged Properties"); and
(b) Within thirty days of the Closing Date, the Borrower shall deliver to the Agent:
(i) ALTA mortgagee title insurance policies issued by a Mortgage encumbering title insurance company acceptable to the Agent, in amounts not less than the respective amounts designated in Schedule I with respect to the Mortgages, assuring that each Mortgaged Property in favor of the Collateral Agent, for Mortgages creates a valid and enforceable mortgage lien on the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such applicable Mortgaged Property, and having the priority set forth on Schedule I, which title insurance policies shall otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent and shall include such endorsements as are reasonably requested by the Agent:; and
(ii) with respect evidence as to each whether any Mortgaged Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (any such Mortgaged Property, a "Flood Hazard Property"), and if any Mortgaged Property is a Flood Hazard Property, whether the community in which such consentsMortgaged Property is located is participating in the National Flood Insurance Program, approvals, amendments, supplements, estoppels, tenant subordination agreements the Borrower's written acknowledgment of receipt of written notification from the Agent as to the fact that such Mortgaged Property is a Flood Hazard Property and as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program and copies of insurance policies or other instruments as necessary certificates of insurance of the Borrower evidencing flood insurance satisfactory to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for and naming the owner or holder Collateral Agent as sole loss payee on behalf of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;Senior Creditors.
(iii) with respect copies of any existing appraisals and environmental site assessments in Borrower's possession relating to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in Properties.
(c) At the amount reasonably acceptable request of the Agent made from time to time, Borrower shall (i) cause to be delivered to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) Lenders copies of any additional appraisals and environmental site assessments in Borrower's possession relating to the extent necessary Mortgaged Properties; and available(ii) provide, include such reinsurance arrangements (with provisions for direct accessupon reasonable notice, if necessary) as shall be reasonably acceptable access to the Collateral AgentMortgaged Properties and to any books, (C) contain a “tie-in” records or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable documents relating to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, operation and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition management of the Mortgaged PropertyProperties which may be necessary in order to conduct appraisals and environmental site assessments. Such appraisals and site assessments shall be (i) performed by professionals satisfactory to the Bank, (ii) in form, substance and such state or condition existed on scope satisfactory to the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentationBank, and (Eiii) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agentundertaken at Borrower's sole expense.
Appears in 2 contracts
Samples: Forbearance and Modification Agreement, Forbearance and Modification Agreement (Arguss Communications Inc)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion):
(i) a Mortgage encumbering With respect to each Mortgaged Property in favor existing as of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party Issue Date that is required by the owner of Credit Agreement Collateral Agent to be mortgaged, the Issuers and the Guarantors shall deliver to the Collateral Agent on or holder of any interest prior to the Post-Closing Collateral Date, the following documents, in such Mortgaged Property, and otherwise each case in form for recording in substantially similar to that accepted by the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Credit Agreement Collateral Agent:
(iii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments the extent customary and appropriate as necessary to consummate the Transactions or as shall reasonably be deemed necessary determined by the Issuers or the Credit Agreement Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Agent, filed a Mortgage with respect to such Mortgaged PropertyProperty duly executed and delivered by the record owner of such property recorded in the appropriate filing or recording offices creating a valid and subsisting perfected second-priority (to the extent applicable in the relevant jurisdiction) Lien (subject only to Permitted Liens) on the property and/or rights described therein in favor of the Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Securities, and evidence that all filing and recording taxes and fees, if any, have been paid or otherwise provided for (it being understood that if a mortgage tax will be owed on the entire amount of the indebtedness evidenced hereby, then the amount secured by the Mortgage shall be limited to 100% of the fair market value of the property at the time the Mortgage is entered into if such limitation results in such mortgage tax being calculated based upon such fair market value);
(iiiii) with respect in the case of any such Mortgaged Property located in the United States or to each Mortgagethe extent customary as determined by the Credit Agreement Collateral Agent, a policy if any, or the Issuers in the jurisdiction of where such Mortgaged Property is located, fully paid policies of title insurance (or marked marked-up title insurance commitment commitments having the effect of a policy policies of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to naming the Collateral Agent, which policy Agent as the insured for its benefit and the benefit of the Trustee and the Holders of the Securities (or such marked-up commitment) (each, a the “Title PolicyMortgage Policies”) issued by a nationally recognized title insurance company in a customary amount (not to exceed 100% of the fair market value of the real properties covered thereby), insuring the Mortgages to be valid subsisting second-priority Liens on the property described therein, free and clear of all Liens other than Permitted Liens, each of which shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and availablereasonably necessary, include such reinsurance arrangements (with provisions for direct access, if reasonably necessary) as shall be reasonably acceptable to the Collateral Agent), (CB) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), ) and (DC) have been supplemented by such endorsements (or where such endorsements are not available, opinions of special counsel, architects or other documentation reasonably acceptable to the Collateral Agentprofessionals) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving creditcredit (if available after the Issuers use commercially reasonable efforts), doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, address, separate tax lot, revolving credit, lot and so-called comprehensive coverage over covenants and restrictions); provided that provided, however, the Issuers and Guarantors shall not be obligated to obtain a “creditor’s rights” endorsement;
(iii) legal opinions, addressed to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged PropertyTrustee, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent, the Initial Purchasers and the Holders of the Securities, as to customary perfection and enforceability matters as determined by the Credit Agreement Collateral Agent, if any, or the Issuers;
(iv) with respect in the case of any such Mortgaged Property located in the United States or to the extent customary as determined by the Credit Agreement Collateral Agent, if any, or the Issuers in the jurisdiction of where such Mortgaged Property is located, a survey or express map of each Mortgaged Property, Property certified to the Collateral Agent for its benefit and for the benefit of the Trustee and Holders of the Securities sufficient in form to delete the standard survey exception in the Mortgage Policies and provide the Collateral Agent with endorsements to such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to in the Collateral Agent case of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged PropertyProperty located in the United States, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged PropertyProperty (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Issuers and each Guarantor relating thereto); and
(ixvi) an Opinion in the case of Counsel relating to each any such Mortgaged Property described abovelocated in the United States or to the extent customary in the jurisdiction of where such Mortgaged Property is located, a copy of a certificate as determined by the Credit Agreement Collateral Agent, if any, or the Issuers as to coverage under the insurance policies required by this Indenture and the Second Lien Collateral Documents including, without limitation, flood insurance policies, each of which Opinion of Counsel shall be in form endorsed or otherwise amended to include a “Standard” or “New York” lender’s loss payable or mortgage endorsement (as applicable) and substanceshall name the Collateral Agent, for its benefit and from counselthe benefit of the Trustee and the Holders of the Securities, reasonably satisfactory to the Administrative Agentas additional insured.
Appears in 2 contracts
Samples: Indenture (Gates Global Inc.), Indenture (Gates Engineering & Services FZCO)
Mortgaged Properties. (a) The Collateral Agent Mortgaged Properties shall have received not later than 60 days after at all times satisfy all of the Closing Date (unless extended by the Administrative Agent in its sole discretion):following conditions:
(i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral AgentMortgaged Properties shall be owned 100% in fee simple or leased under a ground lease approved by Agent by the Borrower or, for subject to the benefit terms of this Agreement, a Subsidiary Guarantor, free and clear of all Liens other than the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest Liens permitted in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each §8.2(ix). If such Mortgaged Property is situatedowned or leased by a Subsidiary Guarantor, together such Subsidiary Guarantor shall not be a borrower or guarantor with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof respect to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under Indebtedness other than the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent:Obligations;
(ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property[Intentionally Omitted];
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for is managed by the business Borrower or a Wholly Owned Subsidiary of the Company and its AffiliatesBorrower, or a third party manager approved by the Borrower shall have no obligation Agent, such approval not to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agentbe unreasonably withheld;
(iv) with respect prior to each Mortgaged Propertyinclusion of Real Estate within the Collateral, such affidavitsBorrower shall have delivered to Agent, certificatesand Agent and the Majority Banks as applicable shall have approved, information the Eligible Real Estate Qualification Documents (including financial data) it being acknowledged that the tenant estoppels and instruments of indemnification (including a so-called “gap” indemnification) as shall be Subordination, Attornment and Non Disturbance Agreements required to induce be delivered pursuant to Schedule 5.3 must be delivered on or before the Title Company to issue date that is ninety (90) days after the title policy/ies inclusion of such Real Estate in the Collateral, provided further that if such items are not delivered within such period such Real Estate shall no longer be included in the calculation of the Borrowing Base Availability unless and endorsements contemplated aboveuntil such items are delivered);
(v) evidence reasonably acceptable each of the Mortgaged Properties shall consist solely of Real Estate (A) which is located within the contiguous 48 states of the continental United States, , excluding those States which prescribe as of the date of inclusion of such Real Estate in the Collateral a “single-action” or similar rule limiting the rights of creditors secured by real property, which exclusion shall apply, without limitation, to the Collateral Agent States of payment California and Washington except to the extent (i) such exclusion is waived in writing by the Borrower Agent with respect to a specific parcel of Real Estate, or (ii) the Mortgaged Property is located in New York or New Jersey, (B) which is utilized principally for a shopping center or a retail facility or a use ancillary thereto (including, with respect to Borrower’s Aquia development only, an office component) and is consistent with Borrower’s business strategy on the date of this Agreement, (C) which contains improvements that are in operating condition and available for occupancy, and (D) except with respect to properties temporarily removed from the occupancy calculation pursuant to §7.19(a)(ix), with respect to which valid certificates of occupancy or the equivalent for all title policy premiums, search buildings thereon have been issued and examination charges, escrow charges are in full force and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to aboveeffect;
(vi) with respect to each Mortgaged Property, copies of all leases in which the no Person other than Borrower or a Subsidiary Guarantor has any Subsidiary holds the lessor’s direct or indirect ownership of any equity interest or other agreements relating to possessory interests Voting Interest in such Subsidiary Guarantor if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly Property is owned or leased under a ground lease by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and Subsidiary Guarantor (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease it being understood that no such Person shall be deemed to have been reasonably accepted any such ownership interest for purposes of this provision solely by virtue of owning any equity interest in the Collateral AgentTrust or owning any limited partnership interest in the Borrower);
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested[Intentionally Omitted];
(viii) the number of properties included within the Mortgaged Properties shall not be less than ten (10);
(ix) the Mortgaged Properties shall consist solely of Real Estate which has (A) an aggregate occupancy level of tenants (excluding the Borrower or any of its Affiliates) in possession (but not any tenant having under lease 25,000 square feet or more on a completed Federal Emergency Management Agency Standard Flood Hazard Determination holdover or month-to-month basis), operating, paying rent and which are not otherwise in default of at least seventy-five percent (75%) of the Net Rentable Area within such Mortgaged Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect, and (B) an aggregate level of tenants (excluding the Borrower or any of its Affiliates) under leases in such Mortgaged Properties (but not any tenant having under lease 25,000 square feet or more on a holdover or month-to-month basis) which are paying rent and which are not in default of at least eighty percent (80%) of the Net Rentable Area within such Mortgaged Properties for the previous fiscal quarter of the Borrower based on bona fide arms-length tenant leases requiring current rental payments and which are in full force and effect. Notwithstanding the foregoing, Borrower may temporarily remove a Mortgaged Property from the foregoing occupancy calculations with respect to each a Mortgaged Property (x) that is a Redevelopment Property, (y) which is being voluntarily redeveloped by Borrower to reposition such property and (z) which Agent has approved in writing as a property that can be excluded from such calculation. Without limiting the foregoing, the Agent shall not be required to approve the removal of such property from the foregoing calculation if redevelopment is as a result of a default, insolvency, lease termination or other act or circumstance affecting a tenant of such Mortgaged Property. Such property shall be excluded from the foregoing occupancy calculations until the date that is eighteen (18) months following the initial approval of such Mortgaged Property as a Redevelopment Property for the purposes of this §7.19; and
(ixx) an Opinion no more than ten percent (10%) of Counsel relating to each the Borrowing Base Availability of the Mortgaged Property described above, which Opinion of Counsel Properties shall be in form properties leased by Borrower or a Subsidiary Guarantor as the lessee or tenant under a ground lease;
(b) [Intentionally Omitted.]
(c) In the event that all or any material portion of any Real Estate within the Mortgaged Properties shall be damaged or taken by condemnation, then such Real Estate shall no longer be a part of the Mortgaged Properties unless and substanceuntil (i) any damage to such Real Estate is repaired or restored, such Real Estate becomes fully operational and from counsel, reasonably the Agent shall receive evidence satisfactory to the Administrative AgentAgent of the Operating Cash Flow of such Real Estate following such repair or restoration (both at such time and prospectively) or (ii) Agent shall receive evidence satisfactory to the Agent that the Operating Cash Flow of such Real Estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation.
(d) Upon any Mortgaged Property ceasing to qualify as a Mortgaged Property, such Mortgaged Property shall no longer be included in the calculation of the Borrowing Base Availability nor shall the Operating Cash Flow from such property be included for the purposes of §9.5 (provided that such Mortgaged Property shall remain as Collateral unless released as provided in this Agreement). Within five (5) Business Days after any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified Mortgaged Property, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the value attributable to such Mortgaged Property. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent a pro forma Compliance Certificate demonstrating, after giving effect to such removal, replacement or disqualification, compliance with the covenants contained in §7.19 and §9.5.
Appears in 2 contracts
Samples: Secured Master Loan Agreement (Ramco Gershenson Properties Trust), Secured Master Loan Agreement (Ramco Gershenson Properties Trust)
Mortgaged Properties. The Collateral Administrative Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion):
(i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Administrative Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:
(ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Administrative Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first second mortgage Lien (subject only to the Lien securing the Term Loan Obligations) on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Administrative Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Administrative Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Administrative Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Administrative Agent) as shall be reasonably requested by the Collateral Administrative Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Administrative Agent;.
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Administrative Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Administrative Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Administrative Agent, ; provided that, if the Collateral Administrative Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Administrative Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
Appears in 2 contracts
Samples: Revolving Loan Credit Agreement (CDW Finance Corp), Revolving Loan Credit Agreement (CDW Corp)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion):
(i) a Mortgage encumbering each Mortgaged Property In order to create in favor of the Collateral AgentTrustee, for the ratable benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in such any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case of the Mortgaged Properties identified on Schedule 1.01(b), on or prior to the date that is ninety days after the Closing Date and otherwise (ii) in the case of any other Mortgaged Properties acquired by the Borrower or any Guarantor after the Closing Date, within ninety days following the acquisition thereof:
(a) fully executed and notarized Mortgages, in proper form for recording in the recording office all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) opinions of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in each applicable political subdivision where each state in which such Mortgaged Property is situated, together located with respect to the enforceability of the Mortgages to be recorded in such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, state and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdictionmatters as Administrative Agent may reasonably request, all of which shall be in each case in form and substance reasonably satisfactory to Administrative Agent;
(i) ALTA mortgagee title insurance policies or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Administrative Agent with respect to each such Mortgaged Property insuring the Mortgages as valid and subsisting Liens on the Mortgaged Property described therein, free and clear of all Liens except Permitted Liens (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property and with such endorsements as the Administrative Agent may request, naming the Collateral Agent:Trustee and its respective successors and assigns as the insured, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the date on which a Mortgage is delivered with respect to such Mortgaged Property and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Administrative Agent and (ii) evidence satisfactory to Administrative Agent that such Credit Party has paid to the title company or to the appropriate governmental authorities all expenses and premiums of the title company and all other sums required in connection with the issuance of each Title Policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages for the applicable Mortgaged Property in the appropriate real estate records;
(iid) no later than three (3) Business Days prior to the date on which a Mortgage is delivered with respect to a Mortgaged Property, in order to comply with the Flood Laws, the following documents (collectively, the “Flood Documents”) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable satisfactory to Administrative Agent: (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the property is a Flood Hazard Property, a notification to the Collateral Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the NFIP is not available because the applicable community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to Administrative Agent (any of the foregoing being “Evidence of Flood Insurance”);
(e) ALTA surveys of all Mortgaged Properties, certified to Administrative Agent, ; provided that no Borrower or Guarantor shall be required to obtain a new ALTA survey with respect to which any Mortgaged Property if the Borrower delivers to the applicable Loan Party shall have used its commercially reasonable efforts to obtain title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (yii) shall otherwise be an affidavit executed by a Senior Officer of the Borrower confirming that there has been no significant change since the date of such survey in respect of the matters covered therein, so long as such survey and affidavit are reasonably acceptable to the Collateral Agent, provided that, if Administrative Agent and enables the Collateral Agent fails applicable title company to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all provide full survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Propertycoverage; and
(ixf) an Opinion of Counsel relating to appraisals and other documents, instruments and certificates, in each Mortgaged Property described above, which Opinion of Counsel shall be case in form and substance, and from counsel, reasonably substance satisfactory to Administrative Agent that the Administrative AgentAgent shall reasonably request.
Appears in 1 contract
Mortgaged Properties. The Collateral Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion):
(ia) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent:
(ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after On the Closing Date, and on -------------------- the date of the addition of any Real Property Asset to the Mortgaged Properties, as applicable, or as soon thereafter as is practicable, the Lead Agent shall cause all of the Mortgages, the Assignments, the Environmental Indemnities and the Financing Statements (collectively, the "Security Documents") (which are to ------------------ be recorded and/or filed) to be recorded and/or filed in the appropriate offices, as security for the Loans, at the Borrower's sole cost and expense. Upon such addition, the Borrower shall cause to be delivered to the Lead Agent, at the Borrower's sole cost and expense, the Title Policies, and the Borrower will cooperate with the Lead Agent and execute such further instruments and documents and perform such further acts as the Lead Agent or the Title Company shall reasonably request to carry out the creation and perfection of the liens and security interests contemplated by the Security Documents.
(b) The Lead Agent shall have the annual (based on the date of the acquisition of such most recent applicable Appraisal) right with respect to each Real Property Asset which is or becomes a Mortgaged Property, prior to the Maturity Date, to commission, at the Borrower's sole cost and expense, an updated Appraisal, and shall deliver copies of each such Appraisal to each Bank and to the Borrower promptly after receipt thereof by the Lead Agent.
(c) and such state The Borrower shall be entitled to have one (1) or condition does not materially and adversely affect more of the use or Mortgaged Properties released from the value Lien of the applicable Mortgage, in connection with a sale of such Mortgaged Property for the business to an unaffiliated third party; provided that all of the Company conditions set forth below have been satisfied. -------- The release of any of the Mortgaged Properties shall be subject to the satisfaction of the following conditions:
(i) Lead Agent shall have received from the Borrower at least 10 days' prior written notice of the date proposed for such release (the "Release Date"). ------------
(ii) no Event of Default shall have occurred and its Affiliatesbe continuing as of the date of such notice and the Release Date.
(iii) on or prior to the Release Date, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable pay to the Collateral Agent;Lead Agent for the account of the Banks, the amounts required to be paid pursuant to Section 2.9(b).
(iv) the Borrower shall have delivered to the Lead Agent an officer's certificate, dated the Release Date, confirming the matters referred to in clause (ii) above, certifying that the provisions of clause (iii) above have been complied with respect and certifying that all conditions precedent for such release contained in this Agreement have been complied with; Upon or concurrently with payment of all amounts required to each Mortgaged Property, such affidavits, certificates, information (including financial databe paid pursuant to Section 2.9(b) and instruments the satisfaction of indemnification all other conditions provided for herein, the Lead Agent shall effectuate the following (including hereinafter referred to as a so-called “gap” indemnification) as "Property Release"): the security interest of the Banks in the Mortgage ---------------- and other Loan Documents relating to the released Mortgaged Property shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to released from the Lien of the Mortgage and the Lead Agent will execute and deliver any agreements reasonably requested by the Borrower to be recorded against such release and terminate or reassign, at the Borrower's option, the Mortgage as to the released Mortgaged Property; provided, either expressly by its terms that such release and termination or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable reassignment -------- shall be without recourse to the Collateral Agent, with respect to which Lead Agent (except as contemplated hereby) and without any representation or warranty except that the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Lead Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have represented that such release and termination or reassignment has been reasonably accepted by duly authorized and that it has not assigned or encumbered the Collateral Mortgage or the other Loan Documents relating to the released Mortgaged Property (except as contemplated hereby) and the Lead Agent shall return the originals of any Loan Documents that relate solely to the released Mortgaged Property to the Borrower; provided, further, that upon the release and termination or -------- ------- reassignment of the Lead Agent;
(vii) Surveys 's security interest in the Mortgage relating to the released Mortgaged Property all references herein to the Mortgage relating to the released Mortgaged Property shall be deemed deleted, except as otherwise provided herein with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agentindemnities .
Appears in 1 contract
Mortgaged Properties. 5.12.1. The Collateral Agent Borrower shall have received not later than 60 days after the Closing Date cause SMF (unless extended by the Administrative Agent in its sole discretion):
(ior other record owner of any Mortgaged Property) a Mortgage encumbering each Mortgaged Property to maintain in favor of the Collateral Agent, as collateral agent for the benefit of the Secured Parties, duly executed and acknowledged by an Acceptable Security Interest in each Loan Party that is of the owner Mortgaged Properties described on Schedule 1.1. As to each of or holder of any interest in such the existing Mortgaged PropertyProperties, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof Borrower has caused SMF to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory furnish to the Collateral Agent:
(iia) with respect to each a Mortgage covering such Mortgaged Property, such consentstogether with any other documents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the create a mortgage Lien contemplated by the Mortgage with respect to on such Mortgaged Property;
(iiib) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably if requested by the Collateral Agent, a favorable opinion from local counsel located in the jurisdiction of such Mortgaged Property;
(Bc) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be an ALTA lender’s title insurance policy issued by a title insurer reasonably acceptable satisfactory to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation in form and substance and in amounts reasonably acceptable satisfactory to the Collateral AgentAgent insuring that such Mortgage creates a valid and enforceable first priority mortgage Lien on such Mortgaged Property, free and clear of all defects and encumbrances except Excepted Liens, and containing such endorsements as the Collateral Agent may have reasonably requested;
(d) a current survey of such Mortgaged Property, certified by a licensed or registered surveyor, to the extent required in order for the title insurer to delete the standard survey exception from the title insurance policy covering such Mortgaged Property;
(e) verification that such Mortgaged Property is not located in an area designated by the Federal Emergency Management Agency as shall be reasonably having special flood or mud slide hazards;
(f) if requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of title insurer, satisfactory evidence that such Mortgaged Property is zoned for its current use; and
(g) a “Phase I” environmental assessment report (and if recommended in the business of the Company “Phase I” environmental assessment report and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to requested by the Collateral Agent;
(iv, a “Phase II” environmental assessment report) with respect to each covering such Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably Property prepared by an environmental engineering firm acceptable to the Collateral Agent and reflecting that the environmental condition of payment such Mortgaged Property is acceptable (such determination to be made by the Collateral Agent in the reasonable exercise of its sole discretion).
5.12.2. Within 60 days following the Effective Date, (i) the Borrower shall cause SMF to execute and deliver to the Collateral Agent such amendments to existing Mortgages, in recordable form, as may be required by the Collateral Agent in the reasonable exercise of its sole discretion in order to reflect of record that such Mortgages secure all title policy premiumsof the Obligations hereunder, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required (ii) the Borrower (or SMF) shall cause to be issued to the Collateral Agent such date-down endorsements (or commitments for the recording issuance thereof) to the previously-issued title insurance policies as may be required by the Collateral Agent in the reasonable exercise of its sole discretion to verify that marketable title to the Mortgaged Properties remains vested in SMF, free and clear of any Liens (other than Excepted Liens).
5.12.3. The Borrower may at any time grant or cause to be granted an Acceptable Security Interest in favor of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which Collateral Agent on other real Properties owned by the Borrower or any Subsidiary holds of its Subsidiaries by furnishing the lessor’s interest or other agreements relating to possessory interests if anyitems described in clauses (a) through (g) of Section 5.12.
1. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to Upon the Collateral Agent’s being provided an Acceptable Security Interest therein, with respect to which such Properties will be Mortgaged Properties for purposes of this Agreement and the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise Appraised Value thereof will be reasonably acceptable to included in the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection calculation of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative AgentBorrowing Base.
Appears in 1 contract
Samples: Credit Agreement (Saia Inc)
Mortgaged Properties. The Collateral Agent (a) Borrower has good and marketable title to all of its assets and properties, and each Executing Subsidiary shall have received not later than 60 days after good and marketable title to the Closing Date applicable Mortgaged Property, subject to no mortgage, security interest, pledge, lien, charge, encumbrance or title retention or other security agreement or arrangement of any nature whatsoever, except Permitted Encumbrances. Borrower and the applicable Executing Subsidiary will forever warrant and defend the title of the Mortgaged Properties against the lawful claims and demands of all persons whomsoever (unless extended by subject to the Administrative Agent Permitted Encumbrances) for such Mortgaged Properties.
(b) There are no pending or, to the best knowledge of Borrower, threatened proceedings or actions to revoke, attack, invalidate, rescind, or modify in its sole discretion):any material respect
(i) a Mortgage encumbering each the zoning of any Mortgaged Property in favor of or any part thereof, or (ii) any building or other permits heretofore issued with respect to any Mortgaged Property or any part thereof, or asserting that any such zoning or permits do not permit the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder operation of any interest in Mortgaged Property or any part thereof or that any improvements located on such Mortgaged Property, and otherwise Property cannot be operated in form for recording accordance with its intended use or is in the recording office violation of each applicable political subdivision where Use Requirements.
(c) The Mortgage covering each such Mortgaged Property creates a valid and enforceable first Lien on such property described therein, as security for the repayment of the Indebtedness incurred by Borrower hereunder and under the other Loan Documents, subject only to the Permitted Encumbrances applicable to such Mortgaged Property.
(d) The Collateral Pool is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Lawnow, and such financing statements and so long as the Commitment remains in effect or any other instruments necessary monetary obligation to grant a mortgage lien Agent or the Lenders hereunder or under the laws Promissory Notes or the other Loan Documents shall remain unpaid, will be owned solely by Borrower or the applicable Executing Subsidiary, and said Collateral Pool, including the proceeds resulting from the sale or other disposition thereof, is and will remain free and clear of any applicable jurisdiction, all of which shall be in form Liens except the Permitted Encumbrances and substance reasonably satisfactory the other Liens granted pursuant to the Loan Documents to Agent and the Lenders, which Liens to Agent and the Lenders shall, at all times, be first and prior on the Collateral Agent:Pool and all proceeds resulting from the sale or other disposition thereof, and no further action need be taken to perfect said Liens.
(iie) with Neither the existence of any improvements upon a Mortgaged Property nor the present use or condition of any Mortgaged Property violate in any material respect any Use Requirements. With respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or neither the zoning nor any other instruments as necessary right to consummate carry on the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder present use of the fee interest constituting such Mortgaged Property is to grant any extent dependent upon or related to any other real estate. Each Mortgaged Property may be operated in its current fashion and Borrower has received no written notices from any Governmental Authorities alleging any violation by any Mortgaged Property of any Requirement of Law, including but not limited to applicable Use Requirements.
(f) There are no pending or, to the Lien knowledge of Borrower, contemplated or threatened proceedings relating to any (i) taking by the Mortgage with respect eminent domain or other condemnation of any portion of any Mortgaged Property, (ii) condemnation or relocation of any roadways abutting any Mortgaged Property and (iii) denial of access to any Mortgaged Property from any point of access to such Mortgaged Property;.
(iiig) Each Mortgaged Property has adequate and permanent legal access to water, gas, and electrical supply, storm, and sanitary sewerage facilities, other required public utilities (with respect to each Mortgage, of the aforementioned items by means of either a policy of title insurance (or marked up title insurance commitment having direct connection to the effect of a policy of title insurance) insuring the Lien source of such Mortgage as a valid first mortgage Lien utilities or through connections available on the publicly dedicated roadways directly abutting such Mortgaged Property), parking, and means of access between such Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary public highways over recognized curb cuts; and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value all of the insured property up foregoing comply with all applicable Use Requirements.
(h) Each Mortgaged Property is taxed separately without regard to any other real estate and constitutes a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date legally subdivided lot under all applicable Use Requirements (or, in the case of a Mortgaged Property acquired after the Closing Dateif not subdivided, on the date of the acquisition of such Mortgaged Property) and such state no subdivision or condition does not materially and adversely affect the use or the value platting of such Mortgaged Property for the business is required under applicable 38 Requirements of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentationLaw), and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of for all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to purposes each Mortgaged Property described abovemay be mortgaged, which Opinion of Counsel shall be in form and substanceconveyed, and from counsel, reasonably satisfactory to the Administrative Agentotherwise dealt with as an independent parcel.
Appears in 1 contract
Samples: Credit Agreement (G Reit Inc)
Mortgaged Properties. The Collateral Agent shall have received not later than 5.12.1. Within 60 days after following the Closing Date Effective Date, the Borrower shall cause SMF (unless extended by or other record owner of any Mortgaged Property) to execute and deliver to the Administrative Agent in its sole discretion):
(i) Collateral Agent, as collateral agent for the benefit of the Secured Parties, a Mortgage encumbering covering each Mortgaged Property described on Schedule 1.1.77 hereof, together with any other documents, agreements or instruments necessary to create a mortgage Lien on such Mortgaged Property (but only upon the Collateral Agent’s receipt of verification that such Mortgaged Property is not located in favor of an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards). Within 120 days following the Effective Date, the Borrower shall deliver to the Collateral Agent all appropriate documentation and evidence required by the Collateral Agent necessary to determine that arrangements have been made for the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by to have an Acceptable Security Interest in each Loan Party that is of the owner of or holder of any interest in Mortgaged Properties described on Schedule 1.1.77, including as to each such Mortgaged Property:
(a) if requested by the Collateral Agent, and otherwise in form for recording a favorable opinion from local counsel located in the recording office jurisdiction of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires Property;
(b) an ALTA lender’s title insurance policy (or returns as shall be required in connection with commitment for the recording or filing thereof to create issuance thereof) issued by a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance title insurer reasonably satisfactory to the Collateral Agent:
(ii) with respect , in form and substance and in amounts reasonably satisfactory to each the Collateral Agent insuring that such Mortgage creates a valid and enforceable first priority mortgage Lien on such Mortgaged Property, free and clear of all defects and encumbrances except Excepted Liens, and containing such consentsendorsements as the Administrative Agent may reasonably request;
(c) a current survey of such Mortgaged Property, approvalscertified by a licensed or registered surveyor, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent extent required in order for the owner or holder of title insurer to delete the fee interest constituting such Mortgaged Property to grant standard survey exception from the Lien contemplated by the Mortgage with respect to title insurance policy covering such Mortgaged Property;
(iiid) with respect to each Mortgageif requested by the Collateral Agent or the title insurer, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of satisfactory evidence that such Mortgage as a valid first mortgage Lien on the Mortgaged Property is zoned for its current use; and
(e) a “Phase I” environmental assessment report (and fixtures described therein if recommended in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably Phase I” environmental assessment report and requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-inPhase II” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (Denvironmental assessment report) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of covering such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably prepared by an environmental engineering firm acceptable to the Collateral Agent and reflecting that the environmental condition of payment such Mortgaged Property is acceptable (such determination to be made by the Borrower Collateral Agent in the reasonable exercise of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;its sole discretion).
(vi) 5.12.2. If a Phase I environmental assessment report recommends a Phase II environmental assessment report with respect to each any Mortgaged PropertyProperty described in Schedule 1.1.77 and if the Collateral Agent requests such a “Phase II” environmental assessment report or further environmental due diligence, copies or if a title defect (other than an Excepted Lien) is discovered with respect to any Mortgaged Property described in Schedule 1.1.77 that the Borrower is unable to cure, the Borrower may elect to withdraw such Mortgaged Property from the Borrowing Base (and with respect to a request for a “Phase II” environmental assessment report or further environmental due diligence, also elect not to obtain or furnish the requested report or information), but within 60 days of all leases such election the Borrower shall grant or cause SMF to grant the Collateral Agent an Acceptable Security Interest in which a substitute terminal facility or facilities acceptable to the Collateral Agent and having an Appraised Value comparable to the Mortgaged Property so withdrawn. Upon providing an Acceptable Security Interest in the terminal facility or facilities so substituted, the substitute facilities will be Mortgaged Properties for purposes of this Agreement and the Appraised Value thereof will be included in the calculation of the Borrowing Base.
5.12.3. The Borrower may at any time grant or cause to be granted an Acceptable Security Interest in favor of the Collateral Agent on other real Properties owned by the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if anyof its Subsidiaries. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to Upon the Collateral Agent’s being provided an Acceptable Security Interest therein, with respect to which such Properties will be Mortgaged Properties for purposes of this Agreement and the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise Appraised Value thereof will be reasonably acceptable to included in the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection calculation of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative AgentBorrowing Base.
Appears in 1 contract
Samples: Credit Agreement (Saia Inc)
Mortgaged Properties. The Collateral Administrative Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent A) fully executed counterparts of deeds of trust, leasehold deeds of trust, mortgages, leasehold mortgages and similar documents in its sole discretion):
(i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be case in form and substance reasonably satisfactory to the Collateral Administrative Agent and substantially in the form of Exhibit I (each a “Mortgage” and collectively, the “Mortgages”) covering all the Mortgaged Properties, and arrangements reasonably satisfactory to the Administrative Agent shall be in place to provide that counterparts of such Mortgages shall be recorded promptly after the Effective Date in all places to the extent necessary or desirable, in the judgment of the Administrative Agent:
, effectively to create a valid and enforceable first priority Lien, subject only to Permitted Liens, on each Mortgaged Property in favor of the Administrative Agent (iior such other trustee as may be required or desired under local law) for the benefit of the Secured Creditors, (B) a lender’s title insurance policy with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary Property (without any survey exception) paid for by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated Borrower, issued by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of nationally recognized title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of company, together with such Mortgage endorsements, coinsurance, affirmative coverage and reinsurance as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) may be issued by the Title Company reasonably requested by the Collateral Administrative Agent, (B) to the extent necessary in form and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably substance acceptable to the Collateral Administrative Agent, insuring each Mortgage as a first lien on the relevant Mortgaged Property in an amount at least equal to the aggregate of the land value and insurable value of such Mortgaged Property (or such other amount as may reasonably be requested by Administrative Agent) and subject only to Liens permitted under the Credit Agreement (the “Title Policies”), and (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) documents and legal opinions as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Mortgaged Properties. The Collateral Agent (a) Borrower has good and marketable title to all of its assets and properties, and each Executing Subsidiary shall have received not later than 60 days after good and marketable title to the Closing Date applicable Mortgaged Property, subject to no mortgage, security interest, pledge, lien, charge, encumbrance or title retention or other security agreement or arrangement of any nature whatsoever, except Permitted Encumbrances. Borrower and the applicable Executing Subsidiary will forever warrant and defend the title of the Mortgaged Properties against the lawful claims and demands of all persons whomsoever (unless extended by subject to the Administrative Agent Permitted Encumbrances) for such Mortgaged Properties.
(b) There are no pending or, to the best knowledge of Borrower, threatened proceedings or actions to revoke, attack, invalidate, rescind, or modify in its sole discretion):any material respect
(i) a Mortgage encumbering each the zoning of any Mortgaged Property in favor of or any part thereof, or (ii) any building or other permits heretofore issued with respect to any Mortgaged Property or any part thereof, or asserting that any such zoning or permits do not permit the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder operation of any interest in Mortgaged Property or any part thereof or that any improvements located on such Mortgaged Property, and otherwise Property cannot be operated in form for recording accordance with its intended use or is in the recording office violation of each applicable political subdivision where Use Requirements.
(c) The Mortgage covering each such Mortgaged Property creates a valid and enforceable first Lien on such property described therein, as security for the repayment of the Indebtedness incurred by Borrower hereunder and under the other Loan Documents, subject only to the Permitted Encumbrances applicable to such Mortgaged Property.
(d) The Collateral Pool is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Lawnow, and such financing statements and so long as the Commitment remains in effect or any other instruments necessary monetary obligation to grant a mortgage lien Agent or the Lenders hereunder or under the laws Promissory Notes or the other Loan Documents shall remain unpaid, will be owned solely by Borrower or the applicable Executing Subsidiary, and said Collateral Pool, including the proceeds resulting from the sale or other disposition thereof, is and will remain free and clear of any applicable jurisdiction, all of which shall be in form Liens except the Permitted Encumbrances and substance reasonably satisfactory the other Liens granted pursuant to the Loan Documents to Agent and the Lenders, which Liens to Agent and tie Lenders shall, at all times, be first and prior on the Collateral Agent:Pool and all proceeds resulting from the sale or other disposition thereof, and no further action need be taken to perfect said Liens.
(iie) with Neither the existence of any improvements upon a Mortgaged Property nor the present use or condition of any Mortgaged Property violate in any material respect any Use Requirements. With respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or neither the zoning nor any other instruments as necessary right to consummate carry on the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder present use of the fee interest constituting such Mortgaged Property is to grant any extent dependent upon or related to any other real estate. Each Mortgaged Property may be operated in its current fashion and Borrower has received no written notices from any Governmental Authorities alleging any violation by any Mortgaged Property of any Requirement of Law, including but not limited to applicable Use Requirements.
(f) There are no pending or, to the Lien knowledge of Borrower, contemplated or threatened proceedings relating to any (i) taking by the Mortgage with respect eminent domain or other condemnation of any portion of any Mortgaged Property, (ii) condemnation or relocation of any roadways abutting any Mortgaged Property and (iii) denial of access to any Mortgaged Property from any point of access to such Mortgaged Property;.
(iiig) Each Mortgaged Property has adequate and permanent legal access to water, gas, and electrical supply, storm, and sanitary sewerage facilities, other required public utilities (with respect to each Mortgage, of the aforementioned items by means of either a policy of title insurance (or marked up title insurance commitment having direct connection to the effect of a policy of title insurance) insuring the Lien source of such Mortgage as a valid first mortgage Lien utilities or through connections available on the publicly dedicated roadways directly abutting such Mortgaged Property), parking, and means of access between such Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary public highways over recognized curb cuts; and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value all of the insured property up foregoing comply with all applicable Use Requirements.
(h) Each Mortgaged Property is taxed separately without regard to any other real estate and constitutes a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date legally subdivided lot under all applicable Use Requirements (or, in the case of a Mortgaged Property acquired after the Closing Dateif not subdivided, on the date of the acquisition of such Mortgaged Property) and such state no subdivision or condition does not materially and adversely affect the use or the value platting of such Mortgaged Property for the business is required under applicable 37 Requirements of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentationLaw), and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of for all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to purposes each Mortgaged Property described abovemay be mortgaged, which Opinion of Counsel shall be in form and substanceconveyed, and from counsel, reasonably satisfactory to the Administrative Agentotherwise dealt with as an independent parcel.
Appears in 1 contract
Samples: Credit Agreement (G Reit Inc)
Mortgaged Properties. The Subject to the requirements of Section 9.01(b):
(a) If any of the Collateral Agent consists of Mortgaged Properties, the Borrower covenants to deliver valid mortgage Liens (pursuant to documentation reasonably satisfactory to the Administrative Agent) on the fee Properties listed on Schedule 8.16 or to the extent the Borrower is unable to deliver a mortgage on each of such Properties, the Borrower shall have received not later than 60 days after deliver a mortgage Lien on one or more new facilities having a fair market value reasonably equivalent to such omitted Property, such evidence of the Closing Date value of the new facility or facilities to be reasonably acceptable to the Administrative Agent. In connection with the foregoing, upon the reasonable request of the Administrative Agent, the Borrower shall deliver (unless extended by i) flood plain certifications for all of the Mortgaged Property, (ii) such title information as the Administrative Agent in its sole discretion):
(i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be may reasonably require in form and substance reasonably satisfactory to the Collateral Agent:
(ii) with respect Administrative Agent setting forth the status of title to each Mortgaged Propertythe properties listed in Schedule 8.16, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgagean opinion of (1) Xxxxxxx Xxxxx, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable LLP, special counsel to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentationBorrower, and (E2) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to local counsel in Maryland, in each Mortgaged Propertycase, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable satisfactory to the Collateral Administrative Agent, as to such mortgage documentation, (iv) certificates of insurance coverage of the Borrower evidencing that the Borrower is carrying insurance in accordance with Section 7.12 and naming the Administrative Agent as “loss payee” with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain casualty losses at such site, and (yv) shall otherwise be reasonably acceptable to evidence regarding the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower environmental condition of rejection of the lease within 10 Business Days from receipt of the lease, the lease such Mortgaged Properties which shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
(b) The Borrower will, and will cause all of its Subsidiaries to have, for all of the Mortgaged Property that is located in a designated “flood hazard area” in any Flood Insurance Rate Map published by the Federal Emergency Management Agency (or any successor agency), obtained flood insurance in such total amount as required by Regulation H of the Board as from time to time in effect and all official rulings and interpretations thereunder or thereof, and otherwise complied with the National Flood Insurance Program as set forth in the Flood Disaster Protection Act of 1973, as it may be amended from time to time.
Appears in 1 contract
Mortgaged Properties. The Collateral Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion):
(i) a Mortgage encumbering each Mortgaged Property In order to create in favor of the Collateral Agent, for the ratable benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in such any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Agent (i) in the case of the Mortgaged Properties identified on Schedule 1.01(b), on or prior to the date that is ninety (90) days after the Closing Date and otherwise (ii) in the case of any other Mortgaged Properties acquired by the Borrower or any Guarantor after the Closing Date, within ninety (90) days following the acquisition thereof:
(a) fully executed and notarized Mortgages, in proper form for recording in the recording office all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) opinions of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in each applicable political subdivision where each state in which such Mortgaged Property is situated, together located with respect to the enforceability of the Mortgages to be recorded in such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, state and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdictionmatters as Administrative Agent may reasonably request, all of which shall be in each case in form and substance reasonably satisfactory to Administrative Agent;
(i) ALTA mortgagee title insurance policies or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Administrative Agent with respect to each such Mortgaged Property insuring the Mortgages as valid and subsisting Liens on the Mortgaged Property described therein, free and clear of all Liens except Permitted Liens (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property and with such endorsements as the Administrative Agent may request, naming the Collateral Agent:Agent and its respective successors and assigns as the insured, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the date on which a Mortgage is delivered with respect to such Mortgaged Property and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Administrative Agent and (ii) evidence satisfactory to Administrative Agent that such Credit Party has paid to the title company or to the appropriate governmental authorities all expenses and premiums of the title company and all other sums required in connection with the issuance of each Title Policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages for the applicable Mortgaged Property in the appropriate real estate records;
(iid) no later than three (3) Business Days prior to the date on which a Mortgage is delivered with respect to a Mortgaged Property, in order to comply with the Flood Laws, the following documents (collectively, the “Flood Documents”) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable satisfactory to Administrative Agent: (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the property is a Flood Hazard Property, a notification to the Collateral Borrower (“Borrower Notice”) and (if applicable) notification to the Borrower that flood insurance coverage under the NFIP is not available because the applicable community does not participate in the NFIP, (C) documentation evidencing the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery), and (D) if Borrower Notice is required to be given and flood insurance is available in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application for a flood insurance policy plus proof of premium payment, a declaration page confirming that flood insurance has been issued, or such other evidence of flood insurance satisfactory to Administrative Agent (any of the foregoing being “Evidence of Flood Insurance”);
(e) ALTA surveys of all Mortgaged Properties, certified to Administrative Agent, ; provided that no Borrower or Guarantor shall be required to obtain a new ALTA survey with respect to which any Mortgaged Property if the Borrower delivers to the applicable Loan Party shall have used its commercially reasonable efforts to obtain title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (yii) shall otherwise be an affidavit executed by a Senior Officer of the Borrower confirming that there has been no significant change since the date of such survey in respect of the matters covered therein, so long as such survey and affidavit are reasonably acceptable to the Collateral Agent, provided that, if Administrative Agent and enables the Collateral Agent fails applicable title company to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all provide full survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Propertycoverage; and
(ixf) an Opinion of Counsel relating to appraisals and other documents, instruments and certificates, in each Mortgaged Property described above, which Opinion of Counsel shall be case in form and substance, and from counsel, reasonably substance satisfactory to Administrative Agent that the Administrative AgentAgent shall reasonably request.
Appears in 1 contract
Mortgaged Properties. The Collateral Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion):
(ia) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent:
(ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after On the Closing Date, and on -------------------- the date of the addition of any Real Property Asset to the Mortgaged Properties, as applicable, or as soon thereafter as is practicable, the Lead Agent shall cause all of the Mortgages, the Assignments, the Environmental Indemnities and the Financing Statements (collectively, the "Security Documents") (which are to ------------------ be recorded and/or filed) to be recorded and/or filed in the appropriate offices, as security for the Loans, at the Borrower's sole cost and expense. Upon such addition, the Borrower shall cause to be delivered to the Lead Agent, at the Borrower's sole cost and expense, the Title Policies, and the Borrower will cooperate with the Lead Agent and execute such further instruments and documents and perform such further acts as the Lead Agent or the Title Company shall reasonably request to carry out the creation and perfection of the liens and security interests contemplated by the Security Documents.
(b) The Lead Agent shall have the annual (based on the date of the acquisition of such most recent applicable Appraisal) right with respect to each Real Property Asset which is or becomes a Mortgaged Property, prior to the Maturity Date, to commission, at the Borrower's sole cost and expense, an updated Appraisal, and shall deliver copies of each such Appraisal to each Bank and to the Borrower promptly after receipt thereof by the Lead Agent.
(c) and such state The Borrower shall be entitled to have one (1) or condition does not materially and adversely affect more of the use or Mortgaged Properties released from the value Lien of the applicable Mortgage, in connection with a sale of such Mortgaged Property for the business to an unaffiliated third party; provided that all of the Company conditions set forth below have been satisfied. -------- The release of any of the Mortgaged Properties shall be subject to the satisfaction of the following conditions:
(i) Lead Agent shall have received from the Borrower at least 10 days' prior written notice of the date proposed for such release (the "Release Date"). ------------
(ii) no Event of Default shall have occurred and its Affiliatesbe continuing as of the date of such notice and the Release Date.
(iii) on or prior to the Release Date, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable pay to the Collateral Agent;Lead Agent for the account of the Banks, the amounts required to be paid pursuant to Section 2.9(b).
(iv) the Borrower shall have delivered to the Lead Agent an officer's certificate, dated the Release Date, confirming the matters referred to in clause (ii) above, certifying that the provisions of clause (iii) above have been complied with respect and certifying that all conditions precedent for such release contained in this Agreement have been complied with; Upon or concurrently with payment of all amounts required to each Mortgaged Property, such affidavits, certificates, information (including financial databe paid pursuant to Section 2.9(b) and instruments the satisfaction of indemnification all other conditions provided for herein, the Lead Agent shall effectuate the following (including hereinafter referred to as a so-called “gap” indemnification) as "Property Release"): the ---------------- security interest of the Banks in the Mortgage and other Loan Documents relating to the released Mortgaged Property shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to released from the Lien of the Mortgage and the Lead Agent will execute and deliver any agreements reasonably requested by the Borrower to be recorded against such release and terminate or reassign, at the Borrower's option, the Mortgage as to the released Mortgaged Property; provided, either expressly by its terms -------- that such release and termination or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable reassignment shall be without recourse to the Collateral Agent, with respect to which Lead Agent (except as contemplated hereby) and without any representation or warranty except that the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Lead Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have represented that such release and termination or reassignment has been reasonably accepted by duly authorized and that it has not assigned or encumbered the Collateral Mortgage or the other Loan Documents relating to the released Mortgaged Property (except as contemplated hereby) and the Lead Agent shall return the originals of any Loan Documents that relate solely to the released Mortgaged Property to the Borrower; provided, further, -------- ------- that upon the release and termination or reassignment of the Lead Agent;
(vii) Surveys 's security interest in the Mortgage relating to the released Mortgaged Property all references herein to the Mortgage relating to the released Mortgaged Property shall be deemed deleted, except as otherwise provided herein with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agentindemnities.
Appears in 1 contract
Mortgaged Properties. The Collateral Agent shall have received not later than 60 Within ninety (90) days after the Closing Date (Amendment No. 3 Effective Date, unless waived or extended by the Administrative Agent in its sole discretion):, with respect to each real property encumbered by a Mortgage, the Administrative Agent shall have received, with respect to the existing Mortgages, the following, in each case in form and substance reasonably acceptable to the Administrative Agent:
(i) a an amendment to the existing Mortgage encumbering each Mortgaged Property (the “Mortgage Amendment”) to reflect the matters set forth in favor of the Collateral Agent, for the benefit of the Secured Partiesthis Amendment, duly executed and acknowledged by each the applicable Loan Party that is the owner of or holder of any interest in such Mortgaged PropertyParty, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situatedMortgage was recorded, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements law;
(ii) a favorable opinion, addressed to the Administrative Agent and the Secured Parties covering, among other things, the due authorization, execution, delivery and enforceability of Lawthe applicable Mortgage as amended by the Mortgage Amendment (such opinion may take assumptions for any matters addressed in the local counsel opinion originally delivered in connection with the Mortgage);
(iii) an ALTA 11-06 endorsement to the existing title policy, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:
(ii) , along with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder a title search of the fee interest constituting real property to show that as of the date of such Mortgaged Property endorsement that the real property subject to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property is free and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or clear of all defects and encumbrances except those Liens permitted under such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral AgentMortgage;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, charges escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies Mortgage Amendment referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ixv) an Opinion such affidavits, certificates, information and instruments of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel indemnification as shall be in form and substance, and from counsel, reasonably satisfactory required to induce the title insurance company to issue the endorsement to the Administrative Agenttitle policy contemplated in this Section 10 and evidence of payment of all applicable title insurance premiums, search and examination charges, mortgage recording taxes and related charges required for the issuance of the endorsement to the title policy contemplated in this Section 10.
Appears in 1 contract
Samples: Amendment Agreement (Polyone Corp)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 Within ninety (90) days after the Closing Date (Amendment No. 9 Effective Date, unless waived or extended by the Administrative Agent in its sole discretion):, with respect to each real property encumbered by a Mortgage, the Administrative Agent shall have received, with respect to the existing Mortgages, either the items listed in paragraph (a) or the items listed in paragraph (b), in each case, in form and substance reasonably acceptable to the Administrative Agent:
(a) an opinion or email confirmation from local counsel in each jurisdiction where a Mortgaged Property is located, in form and substance reasonably satisfactory to the Administra- tive Agent, to the effect that: (i) a Mortgage encumbering each Mortgaged Property in favor the recording of the Collateral Agentexisting Mortgage is the only filing or recording nec- xxxxxx to give constructive notice to third parties of the lien created by such Mortgage as security for the Obligations, including the Obligations evidenced by the Credit Agree- ment as amended by this Amendment and the other documents executed in connection therewith, for the benefit of the Secured Parties; and (ii) no other documents, instruments, filings, recordings, re-recordings, re-fil- ings or other actions, including, without limitation, the payment of any mortgage record- ing taxes or similar taxes, are necessary or appropriate under applicable law in order to maintain the continued enforceability, validity or priority of the lien created by such Mortgage as security for the Obligations, including the Obligations evidenced by the -6- Credit Agreement as amended by this Amendment and the other documents executed in connection therewith, for the benefit of the Secured Parties; or (b) with respect to each existing Mortgage, the following, in each case in form and substance reasonably acceptable to the Administrative Agent:
(i) an amendment to the existing Mortgage (the “Mortgage Amendment”) to reflect the matters set forth in this Amendment, duly executed and acknowledged by each the applicable Loan Party that is the owner of or holder of any interest in such Mortgaged PropertyParty, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situatedMortgage was recorded, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements law; (ii) a favorable opinion, addressed to the Administrative Agent and the Secured Parties covering, among other things, the due authorization, execution, delivery and enforceability of Lawthe applicable Mortgage as amended by the Mortgage Amendment (such opinion may take assumptions for any matters addressed in the local counsel opinion originally delivered in connection with the Mortgage); (iii) an ALTA 11-06 endorsement to the existing title policy or other title product reasonably acceptable to the Administrative Agent, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:
(ii) , along with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder a title search of the fee interest constituting real property to show that as of the date of such Mortgaged Property endorsement that the real property subject to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien lien of such Mortgage as a valid first mortgage Lien on is free and clear of all defects and encumbrances except those Liens permitted under the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions)Amended Credit Agreement; provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, charges escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages Mortgage Amendment referred to above; and (v) such affidavits, certificates, information and instruments of indemnification as shall be required to induce the title insurance company to issue the endorsement to the title policy contemplated in this Section 10 and evidence of payment of all applicable title insurance premiums, search and examination charges, mortgage recording taxes and related charges required for the issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate endorsement to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement title policy contemplated in form and substance reasonably acceptable to the Collateral Agentthis Section 10. The Administrative Agent xxxxxx agrees that, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the leaseSection 10(b)(ii), the lease shall be deemed to have been reasonably accepted by forms of opinion previously delivered in connection with the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit existing Mortgage are acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Samples: Amendment Agreement (Avient Corp)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion):
(i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements requirements of Lawlaw, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent:;
(ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a loan policy of title insurance (or marked up title insurance commitment having the effect of a loan policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company Borrower and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged PropertyProperty (with respect to any Mortgaged Property acquired after the Closing Date); and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Samples: Term Loan Agreement (CDW Corp)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion):
(i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent:
(ii) with With respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary the Issuers and the Guarantors shall deliver to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent the following documents, in order for each case in form and substance satisfactory to the owner or holder Initial Purchasers and the Trustee:
(i) counterparts of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the a Mortgage with respect to such Mortgaged PropertyProperty duly executed and delivered by the record owner of such property in form suitable for filing or recording in the appropriate filing or recording offices in order to create a valid and subsisting perfected lien on the property and/or rights described therein in favor of the Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Notes, and evidence that all filing and recording taxes and fees have been paid or otherwise provided for (it being understood that if a mortgage tax will be owed on the entire amount of the indebtedness incurred pursuant to the Indenture and the Notes, then the amount secured by the Mortgage shall be limited to 100% of the fair market value of the property at the time the Mortgage is entered into if such limitation results in such mortgage tax being calculated based upon such fair market value);
(iiiii) other than with respect to each MortgageMortgaged Properties located in Xxxxxxxxx, Xxxxxxx, Xxxxxxx xxx Xxxxx, Xxxxxxx, Xxxx Xxxx (unless the Initial Purchasers determine, in their reasonable opinion, there to be a policy defect in such title), Italy, Luxembourg, The Netherlands, Singapore, Spain, Sweden, Switzerland and any other jurisdiction, as reasonably determined by the Initial Purchasers and/or the Trustee, in which title insurance is not customary, fully paid policies of title insurance (or marked marked-up title insurance commitment commitments having the effect of a policy policies of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property naming the Collateral Agent as the insured for its benefit and fixtures described therein the benefit of the Trustee and the Holders of the Notes (the “Mortgage Policies”) issued by a nationally recognized title insurance company reasonably acceptable to the Initial Purchasers in the form and substance and in an amount reasonably acceptable to the Collateral AgentInitial Purchasers (not to exceed 100% of the fair market value of the real properties covered thereby), insuring the Mortgages to be valid subsisting liens on the property described therein, pari passu with the liens of the mortgages securing the obligations pursuant to the Credit Agreement and otherwise, free and clear of all liens other than liens permitted under the Indenture and other liens reasonably acceptable to the Initial Purchasers, each of which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and availablereasonably necessary, include such reinsurance arrangements (with provisions for direct access, if reasonably necessary) as shall be reasonably acceptable to the Collateral AgentInitial Purchasers, (CB) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), ) and (DC) have been supplemented by such endorsements (or where such endorsements are not available, opinions of special counsel, architects or other documentation professionals reasonably acceptable to the Collateral AgentInitial Purchasers) as shall be reasonably requested by the Collateral Agent Initial Purchasers (including which may include endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit), doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, address, separate tax lot, revolving credit, lot and so-called comprehensive coverage over covenants and restrictions, in each case only if available after the Company uses commercially reasonable efforts); provided that provided, however, the Issuers and the Guarantors shall not be obligated to obtain a “creditor’s rights” endorsement);
(iii) customary legal opinions (as determined with reference to any applicable jurisdiction), addressed to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to Trustee, the state or condition Collateral Agent, the Initial Purchasers and the Holders of the Mortgaged PropertyNotes, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral AgentInitial Purchasers and the Trustee as to such matters as the Initial Purchasers and the Trustee may reasonably request;
(iv) in the case of any such Mortgaged Property located in the United States and, if reasonably requested by the Initial Purchasers, to the extent customary in any other jurisdiction in which a Mortgaged Property is located, a survey or express map of such Mortgaged Property certified to the Collateral Agent for its benefit and for the benefit of the Trustee and the Holders of the Notes sufficient in form to delete the standard survey exception in the Mortgage Policies and to provide the Collateral Agent with respect endorsements to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) policy as shall be required to induce reasonably requested by the Title Company to issue the title policy/ies and endorsements contemplated aboveInitial Purchasers;
(v) evidence reasonably acceptable to in the Collateral Agent case of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged PropertyProperty located in the United States, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed “life of loan” Federal Emergency Management Agency Standard Flood Hazard Determination with respect to such Mortgaged Property (together with a notice about special flood hazard area status and flood disaster assistance duly executed by the Issuers and each Guarantor relating thereto);
(vi) in the case of any such Mortgaged PropertyProperty located in the United States or to the extent customary in the jurisdiction of where such Mortgaged Property is located, a copy of a certificate as to coverage under the insurance policies required by the Indenture and the Security Documents including, without limitation, flood insurance policies, each of which shall be endorsed or otherwise amended to include a “Standard” or “New York” lender’s loss payable or mortgage endorsement (as applicable) and shall name the Collateral Agent, for its benefit and the benefit of the Trustee and the Holders of the Notes, as additional insured, in form and substance satisfactory to the Initial Purchasers; and
(ixvii) an Opinion to the extent reasonably requested by the Initial Purchasers, copies of, or counterparts addressed to or in favor of Counsel relating to each Mortgaged Property described abovethe Collateral Agent for its benefit and the benefit of the Trustee and the Holders of the Notes of, which Opinion of Counsel shall be in form and substanceany other documents, and from counsel, reasonably satisfactory instruments or other items delivered to the Administrative AgentAgent in connection with the collateral securing the obligations pursuant to the Credit Agreement.
Appears in 1 contract
Samples: Indenture (Styron Canada ULC)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 Within ninety (90) days after the Closing Date (Amendment No. 2 Effective Date, unless waived or extended by the Administrative Agent in its sole discretion):, with respect to each real property encumbered by a Mortgage, the Administrative Agent shall have received, with respect to the existing Mortgages, the following, in each case in form and substance reasonably acceptable to the Administrative Agent:
(i) a an amendment to the existing Mortgage encumbering each Mortgaged Property (the “Mortgage Amendment”) to reflect the matters set forth in favor of the Collateral Agent, for the benefit of the Secured Partiesthis Amendment, duly executed and acknowledged by each the applicable Loan Party that is the owner of or holder of any interest in such Mortgaged PropertyParty, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situatedMortgage was recorded, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements law;
(ii) a favorable opinion, addressed to the Administrative Agent and the Secured Parties covering, among other things, the due authorization, execution, delivery and enforceability of Lawthe applicable Mortgage as amended by the Mortgage Amendment (such opinion may take assumptions for any matters addressed in the local counsel opinion originally delivered in connection with the Mortgage);
(iii) an ALTA 11-06 endorsement to the existing title policy, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:
(ii) , along with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder a title search of the fee interest constituting real property to show that as of the date of such Mortgaged Property endorsement that the real property subject to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property is free and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or clear of all defects and encumbrances except those Liens permitted under such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral AgentMortgage;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, charges escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies Mortgage Amendment referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ixv) an Opinion such affidavits, certificates, information and instruments of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel indemnification as shall be in form and substance, and from counsel, reasonably satisfactory required to induce the title insurance company to issue the endorsement to the title policy contemplated in this Section 9 and evidence of payment of all applicable title insurance premiums, search and examination charges, mortgage recording taxes and related charges required for the issuance of the endorsement to the title policy contemplated in this Section 9. For the avoidance of doubt, the 90 day deadline for such deliverables shall supersede the deadline for such deliverables that is set forth in Amendment Agreement No. 1 dated as of June 15, 2016 and the Administrative AgentAgent hereby consents to such extension.
Appears in 1 contract
Samples: Credit Agreement (Polyone Corp)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 Within ninety (90) days after the Closing Date (Amendment No. 8 Effective Date, unless waived or extended by the Administrative Agent in its sole discretion):, with respect to each real property encumbered by a Mortgage, the Administrative Agent shall have received, with respect to the existing Mortgages, either the items listed in paragraph (a) or the items listed in paragraph (b), in each case, in form and substance reasonably acceptable to the Administrative Agent:
(a) an opinion or email confirmation from local counsel in each jurisdiction where a Mortgaged Property is located, in form and substance reasonably satisfactory to the Administrative Agent, to the effect that:
(i) a Mortgage encumbering each Mortgaged Property in favor the recording of the Collateral Agentexisting Mortgage is the only filing or recording necessary to give constructive notice to third parties of the lien created by such Mortgage as security for the Obligations, including the Obligations evidenced by the Credit Agreement as amended by this Amendment and the other documents executed in connection therewith, for the benefit of the Secured Parties; and
(ii) no other documents, instruments, filings, recordings, re-recordings, re-filings or other actions, including, without limitation, the payment of any mortgage recording taxes or similar taxes, are necessary or appropriate under applicable law in order to maintain the continued enforceability, validity or priority of the lien created by such Mortgage as security for the Obligations, including the Obligations evidenced by the Credit Agreement as amended by this Amendment and the other documents executed in connection therewith, for the benefit of the Secured Parties; or
(b) with respect to each existing Mortgage, the following, in each case in form and substance reasonably acceptable to the Administrative Agent:
(i) an amendment to the existing Mortgage (the “Mortgage Amendment”) to reflect the matters set forth in this Amendment, duly executed and acknowledged by each the applicable Loan Party that is the owner of or holder of any interest in such Mortgaged PropertyParty, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situatedMortgage was recorded, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements law;
(ii) a favorable opinion, addressed to the Administrative Agent and the Secured Parties covering, among other things, the due authorization, execution, delivery and enforceability of Lawthe applicable Mortgage as amended by the Mortgage Amendment (such opinion may take assumptions for any matters addressed in the local counsel opinion originally delivered in connection with the Mortgage);
(iii) an ALTA 11-06 endorsement to the existing title policy or other title product reasonably acceptable to the Administrative Agent, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:
(ii) , along with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder a title search of the fee interest constituting real property to show that as of the date of such Mortgaged Property endorsement that the real property subject to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien lien of such Mortgage as a valid first mortgage Lien on is free and clear of all defects and encumbrances except those Liens permitted under the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral AgentAmended Credit Agreement;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, charges escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages Mortgage Amendment referred to above; and
(v) such affidavits, certificates, information and instruments of indemnification as shall be required to induce the title insurance company to issue the endorsement to the title policy contemplated in this Section 10 and evidence of payment of all applicable title insurance premiums, search and examination charges, mortgage recording taxes and related charges required for the issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate endorsement to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement title policy contemplated in form and substance reasonably acceptable to the Collateral Agentthis Section 10. The Administrative Agent xxxxxx agrees that, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the leaseSection 10(b)(ii), the lease shall be deemed to have been reasonably accepted by forms of opinion previously delivered in connection with the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit existing Mortgage are acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Samples: Amendment Agreement (Avient Corp)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 On or prior to the date that is 90 days after the Closing Funding Date (unless extended or such longer period as may be agreed to by the Administrative Agent in its sole discretion):), the Administrative Agent shall have received, with respect to each existing Mortgaged Property as of the Funding Date set forth on Schedule II hereto, either:
(a) (i) an amendment (a “Mortgage encumbering each Mortgaged Property in favor of Amendment”) to the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each existing Mortgage with respect to such Mortgaged Property is situatedreflecting the amendment of the Obligations contemplated hereby, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:, which Mortgage Amendment shall be duly executed and delivered by an authorized officer of each party thereto and in form suitable for filing and recording in all filing or recording offices required to maintain a valid first lien on the property described therein;
(ii) with a fully paid modification and date-down endorsement to any existing Title Policy, to the extent available in the applicable jurisdiction, insuring the Mortgage in respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated as modified by the Mortgage with respect Amendment to such Mortgaged Propertybe a valid first and subsisting Lien on the property described therein, free and clear of all Liens, other than Permitted Encumbrances;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and and/or instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company title companies to issue the title policy/ies and endorsements to the Title Policy contemplated in item (ii) above;; and
(viv) evidence reasonably acceptable to the Collateral Agent opinion of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required local counsel for the recording of Loan Parties in the Mortgages and issuance of state in which the title policies referred to above;
(vi) Mortgaged Property is located, with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any enforceability and validity of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien applicable Mortgage in respect of the Mortgaged Property as modified by the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement Amendment in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent; or
(b) written confirmation (which confirmation may be provided in the form of an electronic mail acknowledgment in form and substance reasonably satisfactory to the Administrative Agent) from local counsel in the jurisdiction in which the applicable Mortgaged Property is located substantially to the effect that no amendment to the existing Mortgage is necessary for such Mortgage to remain in full force and effect and to secure the Secured Obligations, as modified by the transactions contemplated by this Amendment (it being understood that such written confirmation has, as of the Funding Date, been provided in respect of the Mortgaged Properties located in Connecticut, Pennsylvania and Minnesota).
Appears in 1 contract
Mortgaged Properties. The Collateral Agent (a) At least fifteen (15) calendar days prior to the Mortgaged Property Closing Date, the Borrower shall have received not later than 60 days after cause to be delivered to the Administrative Agent, at the Borrower's sole cost and expense, the following materials (the "Closing Date (unless extended by Due Diligence Package"), which must be acceptable in form and substance to the Administrative Agent and its counsel, in its Administrative Agent's sole discretion)::
(i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, for Title Commitment and the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent:Survey;
(ii) with respect a good standing certificate (or equivalent) as to each Mortgaged Propertythe Borrower, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by to the Collateral Agent in order Consolidated Subsidiary that owns or will own the Real Property Asset, for the owner or holder of jurisdiction in which the fee interest constituting such Mortgaged Real Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged PropertyAsset is located;
(iii) evidence of compliance with respect to each Mortgagezoning and other local laws, a policy of title insurance (or marked up title insurance commitment having the effect consisting of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable zoning endorsement to the Collateral Agent, which policy (Title Commitment or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agentlegal opinion;
(iv) with respect to each Mortgaged Propertya Subsidiary Guaranty, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated aboveif applicable;
(v) evidence of property insurance with coverages and in amounts reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to aboveAdministrative Agent;
(vi) with respect the federal tax identification number for the Consolidated Subsidiary owning such Real Property Asset, if applicable;
(vii) an opinion of counsel and/or local counsel to each Mortgaged Property, copies of all leases the Borrower licensed to practice in the jurisdiction in which the Real Property Asset is located, if required by the Administrative Agent, as to such matters as the perfection and enforceability of the Security Documents and as to the authority and organization of Borrower or and any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests Guarantor, if any. To the extent any applicable;
(viii) executed copies of each of the foregoing leases affect any Mortgaged Property, such leases shall (x) Security Documents for each Real Property Asset to be subordinate added to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to Properties;
(ix) a subordination, non-disturbance and attornment agreement substantially in the form attached as Schedule 3.4(a)(ix), or otherwise in form and substance reasonably acceptable to the Collateral Administrative Agent, in its sole discretion, from each Major Tenant of the Real Property Asset and any guarantor of such Major Tenant's obligations under such Major Tenant's lease; and
(x) Borrower's definitive investment memorandum.
(b) As soon as practicable after approval by the Banks of the items identified in Section 3.4(a), and satisfaction of the conditions and requirements set forth in Article III in connection with respect the addition of a proposed Mortgaged Property and any associated Borrowing, the Administrative Agent shall cause all of the Mortgages, the Assignments and the Financing Statements to which be recorded and/or filed in the applicable Loan Party appropriate offices, as security for the Loans, at the Borrower's sole cost and expense. As soon as possible after the Closing Date, Borrower shall have used cause the Title Company to deliver to the Administrative Agent the Title Policy, and Borrower agrees that the closing instructions to the Title Company shall require that the Title Company use its commercially reasonable best efforts to obtain and (y) shall otherwise be reasonably acceptable deliver the Title Policy to the Collateral Agent, provided that, if Administrative Agent not later than ten (10) days after the Collateral Mortgaged Property Closing Date. The Borrower will cooperate with the Administrative Agent fails and execute such further instruments and documents and perform such further acts as the Administrative Agent or the Title Company shall reasonably request to notify carry out the Borrower of rejection creation and perfection of the lease within 10 Business Days from receipt of liens and security interests contemplated by the lease, the lease Security Documents or this Agreement. Such Real Property Assets shall be deemed to have been reasonably accepted by be Mortgaged Properties upon the Collateral recording and filing of such Security Documents and the Administrative Agent;'s receipt of satisfactory evidence thereof.
(viic) Surveys with With respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such any Mortgaged Property, and issuing all survey related endorsements and coverages(i) if the Administrative Agent determines, in its reasonable judgment, that a material adverse change in the value of any Mortgaged Property has occurred, or if (ii) any Mortgaged Property fails to maintain an occupancy rate of at least eighty percent (80%) for two (2) consecutive Fiscal Quarters, then a new Survey the Administrative Agent shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect have the right to commission, at the Borrower's sole cost and expense, an updated Appraisal. The Administrative Agent shall deliver copies of each such Appraisal to each Mortgaged Property; and
(ix) an Opinion of Counsel relating Bank and to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Borrower promptly after receipt thereof by the Administrative Agent. The Borrower shall have the right, at any time, to replace the Appraisal for any Mortgaged Property with an updated Appraisal, at the Borrower's sole cost and expense.
Appears in 1 contract
Mortgaged Properties. (a) Each Mortgaged Property is in compliance with all applicable Requirements of Law (including building and zoning ordinances and codes) and with all Insurance Requirements, except where noncompliance could not reasonably be expected to have a Material Adverse Effect.
(b) No Taking has been commenced or, to the best of the Borrower's knowledge, is contemplated with respect to all or any portion of the applicable Mortgaged Property or for the relocation of roadways providing access to such Mortgaged Property.
(c) There are no pending or, to the best knowledge of the Borrower, proposed special or other assessments for public improvements or otherwise affecting any Mortgaged Property, nor are there any contemplated improvements to such Mortgaged Property that may result in such special or other assessments.
(d) None of the Borrower or any of its Subsidiaries has suffered, permitted or initiated the joint assessment of any Mortgaged Property with any other real property constituting a separate tax lot. Each Mortgaged Property is comprised of one or more parcels, each of which constitutes a separate tax lot and none of which constitutes a portion of any other tax lot.
(e) Each of the Borrower and its Subsidiaries has obtained all permits, licenses, variances and certificates required by Requirements of Law to be obtained by such Person and necessary to the use and operation of each Mortgaged Property except in each case where the failure to have obtained the same could not reasonably be expected to have a Material Adverse Effect. The Collateral Agent shall use being made of each Mortgaged Property is in conformity with the certificate of occupancy and/or such other permits, licenses, variances and certificates for such Mortgaged Property and any other restrictions, covenants or conditions affecting such Mortgaged Property except in each case where the failure to have received obtained the same could not later than 60 days after reasonably be expected to have a Material Adverse Effect.
(f) Each Mortgaged Property is free from structural defects and all building systems contained therein are in good working order and condition, ordinary wear and tear excepted, and are suitable for the purposes for which they are currently being used except in each case where the failure to meet such standards could not reasonably be expected to have a Material Adverse Effect.
(g) Except as permitted by Section 7.3, no Person has any possessory interest in any Mortgaged Property or right to occupy any Mortgaged Property except the Borrower. There are no outstanding options to purchase or rights of first refusal or restrictions on transferability affecting any Mortgaged Property except as set forth on Schedule 7.3(f).
(h) Each Mortgaged Property has adequate rights of access to public ways and is served by public utilities necessary to the continued use and enjoyment of each Mortgaged Property as used and enjoyed on the Closing Date (unless extended by Date. Except for public streets and sidewalks, none of the Administrative Agent Borrower or any of its Subsidiaries uses or occupies any real property other than such Mortgaged Property in its sole discretion):connection with the use and operation of any Mortgaged Property.
(i) No building or structure constituting a Mortgage encumbering Mortgaged Property or any appurtenance thereto or equipment thereon, or the operation or maintenance thereof, violates any restrictive covenant or encroaches on any easement or on any property owned by others, which violation or encroachment materially interferes with the use or could materially adversely affect the value of such building, structure or appurtenance or which encroachment is necessary for the operation of the business at any Mortgaged Property. All buildings, structures, appurtenances and equipment necessary for the use of each Mortgaged Property in favor for the purpose for which it is currently being used are located on the real property encumbered by such Mortgage.
(j) As of the Collateral AgentClosing Date, each Mortgaged Property is located within an area having a Zone Designation C by the Federal Emergency Management Agency and does not lie within the 100 year Flood Plain, as shown on the current and applicable Flood Insurance Rate Map for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest community in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where which each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent:
(ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Osullivan Industries Holdings Inc)
Mortgaged Properties. The Collateral Except to the extent provided in Section 5.13, the Administrative Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion):with respect to each Mortgaged Property:
(i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Administrative Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements requirements of Lawlaw, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:
(ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions execution of such Mortgage or as shall reasonably be deemed necessary by the Collateral Administrative Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first second mortgage Lien (subject only to the Lien securing the Term Loan Obligations) on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Administrative Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Administrative Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Administrative Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Administrative Agent) as shall be reasonably requested by the Collateral Administrative Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) Property and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company Borrower and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Administrative Agent;.
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Administrative Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Administrative Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Administrative Agent, ; provided that, if the Collateral Administrative Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Administrative Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent. Notwithstanding the foregoing, the Administrative Agent shall not enter into any Mortgage in respect of any real property pursuant to this Section 5.10 until (1) the date that occurs 45 days after the Administrative Agent has delivered to the Flood Insurance Requesting Lenders (which may be delivered electronically) the following documents in respect of such real property: (A) the Federal Emergency Management Agency Standard Flood Hazard Determination specified in the preceding clause (viii); (B) if such real property is located in a “special flood hazard area”, (x) a notification to the Mortgaged Property Owner of that fact and (if applicable) notification to the Mortgaged Property Owner that flood insurance coverage is not available and (y) evidence of the receipt by the Mortgaged Property Owner of such notice; and (C) if such notice is required to be provided to the Mortgaged Property Owner and flood insurance is available in the community in which such real property is located, evidence of required flood insurance and (2) the Administrative Agent shall have received written confirmation from each Flood Insurance Requesting Lender that flood insurance due diligence and flood insurance compliance has been completed by such Flood Insurance Requesting Lender (such written confirmation not to be unreasonably conditioned, withheld or delayed).
Appears in 1 contract
Mortgaged Properties. The Collateral Agent shall have received not later than 60 Within ninety (90) days after the Closing Date (Amendment No. 4 Effective Date, unless waived or extended by the Administrative Agent in its sole discretion):, with respect to each real property encumbered by a Mortgage, the Administrative Agent shall have received, with respect to the existing Mortgages, the following, in each case in form and substance reasonably acceptable to the Administrative Agent:
(i) a an amendment to the existing Mortgage encumbering each Mortgaged Property (the “Mortgage Amendment”) to reflect the matters set forth in favor of the Collateral Agent, for the benefit of the Secured Partiesthis Amendment, duly executed and acknowledged by each the applicable Loan Party that is the owner of or holder of any interest in such Mortgaged PropertyParty, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situatedMortgage was recorded, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements law;
(ii) a favorable opinion, addressed to the Administrative Agent and the Secured Parties covering, among other things, the due authorization, execution, delivery and enforceability of Lawthe applicable Mortgage as amended by the Mortgage Amendment (such opinion may take assumptions for any matters addressed in the local counsel opinion originally delivered in connection with the Mortgage);
(iii) an ALTA 11-06 endorsement to the existing title policy, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:
(ii) , along with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder a title search of the fee interest constituting real property to show that as of the date of such Mortgaged Property endorsement that the real property subject to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property is free and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or clear of all defects and encumbrances except those Liens permitted under such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral AgentMortgage;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, charges escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies Mortgage Amendment referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ixv) an Opinion such affidavits, certificates, information and instruments of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel indemnification as shall be in form and substance, and from counsel, reasonably satisfactory required to induce the title insurance company to issue the endorsement to the Administrative Agenttitle policy contemplated in this Section 10 and evidence of payment of all applicable title insurance premiums, search and examination charges, mortgage recording taxes and related charges required for the issuance of the endorsement to the title policy contemplated in this Section 10.
Appears in 1 contract
Mortgaged Properties. The Collateral Agent Borrower and the Management Company shall have received not later than 60 days after taken and completed all of the Closing Date following actions with respect to each location which is a Mortgaged Property as of the Initial Borrowing Date:
(unless extended by i) duly executed and caused to be filed for record in the real property records of the county in which the affected real property encumbered thereby is located its Mortgage, its Lease Assignment and such Uniform Commercial Code financing statements as the Administrative Agent may deem necessary or appropriate to create and/or to perfect the first and paramount lien and security interest in favor of the Administrative Agent in its sole discretion):
(i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed real and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent:personal property described therein;
(ii) with respect furnished to each Mortgaged Propertythe Administrative Agent an original loan policy of title insurance (ALTA 1970 Form B) issued by a title insurance company satisfactory to the Administrative Agent (the "TITLE COMPANY"), such consentsinsuring, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate in amounts (taking into account the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder Appraised Values of the fee interest constituting such respective Mortgaged Property to grant Properties and the Lien contemplated by terms of the Mortgage covering the Kandi Mall), on terms and with respect such affirmative coverages or endorsements as the Administrative Agent may require (including but not limited to the so-called "revolving credit" and "variable rate" endorsements and such facultative direct-access reinsurance treaties as the Administrative Agent may require), that each such Mortgage is a valid first lien upon the real property encumbered thereby, subject only to such Mortgaged Propertyexceptions or matters affecting title as the Administrative Agent may approve in writing;
(iii) furnished to the Administrative Agent a current as-built survey showing such matters as may be required by the Administrative Agent, which survey shall be: (A) acceptable in form and content to the Administrative Agent; (B) certified to the Administrative Agent and the Title Company; and (C)
(1) a note as to the zoning classification of the subject property; and (2) a statement of whether the subject property is located in a flood hazard zone and, if applicable, the Flood Map panel number, suffix, map date and zone for the subject property;
(iv) provided to the Administrative Agent such estoppel certificates and tenant subordination agreements, acceptable in form and content to the Administrative Agent, as the Administrative Agent may require with respect to each Mortgage, a policy any tenant whose lease of title insurance (or marked up title insurance commitment having the effect any portion of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on Properties exceeds 40,000 square feet; and
(v) provided to the Closing Date (or, in the case of Administrative Agent a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such current rent-roll for each Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates. In addition, the Borrower shall have no obligation paid all costs and expenses payable in connection with all of the actions taken pursuant to procure such endorsement this section 5.1(h), including but not limited to (x) all mortgage, intangibles or similar taxes or fees, however characterized, payable in respect of this Agreement, the execution and delivery of the Notes, any of the Mortgages or any of the other documentation, Loan Documents or the recording of any of the same; and (Ey) contain no exceptions to title other than Permitted Liens all expenses and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments premiums of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company in connection with the issuance of such policies of title insurance and to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds other Loan Documents in the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agentappropriate public records.
Appears in 1 contract
Samples: Credit Agreement (First Union Real Estate Equity & Mortgage Investments)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion):
(i) a Mortgage (or an amendment to the existing Mortgage) encumbering each Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements requirements of Lawlaw, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent:;
(ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a loan policy of title insurance (or marked up title insurance commitment having the effect of a loan policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company Borrower and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral AgentAgent or a datedown endorsement the existing Title Policy for each existing Mortgage;;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Samples: Term Loan Agreement (CDW Corp)
Mortgaged Properties. The With respect to any fee interest in any real property subject to a mortgage granted under the Loan Documents as of the Closing Date and any fee interest in any real property located in the United States with a book value in excess of $6.0 million (as reasonably estimated by the Company) acquired after the Closing Date by the Company or any of its Restricted Subsidiaries, the Collateral Agent shall have received not later than 60 135 days after the Closing Date (unless extended by the Administrative Collateral Agent in its sole discretion):
): (ia) a Mortgage (or an amendment to the existing Mortgage) encumbering each Mortgaged Property in favor of the Collateral Agent, Agent for the benefit of the Secured PartiesHolders, duly executed and acknowledged by each Loan Party the Company or Restricted Subsidiary that is the owner of or holder of any interest in such Mortgaged Property, Property and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements requirements of Lawlaw, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent:
; (iib) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as 103 necessary to consummate the Transactions transactions contemplated by this Indenture and the Collateral Documents or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
Property and the owner thereof; (iiic) with respect to each Mortgage, either a bringdown of an existing title policy or a loan policy of title insurance (or marked up title insurance commitment having the effect of a loan policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested a title insurance company of recognized standing as shall be retained by the Company and reasonably acceptable to the Collateral AgentAgent (a “Title Company”), (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower Company shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
Agent or a datedown endorsement on the existing Title Policy for each existing Mortgage; (ivd) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies policies and endorsements contemplated above;
; (ve) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower Company of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.104
Appears in 1 contract
Samples: Indenture (Allegiant Travel CO)
Mortgaged Properties. The Collateral Administrative Agent shall have received not later than 60 135 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion):
(ia) a Mortgage (or an amendment to the existing Mortgage) encumbering each Mortgaged Property in favor of the Collateral Administrative Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party the Borrower or Restricted Subsidiary that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements requirements of Lawlaw, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:;
(iib) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions transactions contemplated by the Loan Documents or as shall reasonably be deemed necessary by the Collateral Administrative Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged PropertyProperty and the owner thereof;
(iiic) with respect to each Mortgage, either a bringdown of an existing title policy or a loan policy of title insurance (or marked up title insurance commitment having the effect of a loan policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Administrative Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the a Title Company reasonably requested by the Collateral Agentof recognized standing, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Administrative Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Administrative Agent) as shall be reasonably requested by the Collateral Administrative Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company Borrower and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral AgentAdministrative Agent or a datedown endorsement on the existing Title Policy for each existing Mortgage;
(ivd) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(ve) evidence reasonably acceptable to the Collateral Administrative Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vif) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s 's interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Administrative Agent, with respect to which the Borrower or its applicable Loan Party Subsidiary shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Administrative Agent, provided that, if the Collateral Administrative Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Administrative Agent;
(viig) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viiih) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(i) (ix) an Opinion opinion of Counsel counsel relating to each Mortgaged Property described above, which Opinion opinion of Counsel counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Allegiant Travel CO)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 Within ninety (90) days after the Closing Date (Amendment No. 5 Effective Date, unless waived or extended by the Administrative Agent in its sole discretion):, with respect to each real property encumbered by a Mortgage, the Administrative Agent shall have received, with respect to the existing Mortgages, the following, in each case in form and substance reasonably acceptable to the Administrative Agent:
(i) a an amendment to the existing Mortgage encumbering each Mortgaged Property (the “Mortgage Amendment”) to reflect the matters set forth in favor of the Collateral Agent, for the benefit of the Secured Partiesthis Amendment, duly executed and acknowledged by each the applicable Loan Party that is the owner of or holder of any interest in such Mortgaged PropertyParty, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situatedMortgage was recorded, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements law;
(ii) a favorable opinion, addressed to the Administrative Agent and the Secured Parties covering, among other things, the due authorization, execution, delivery and enforceability of Lawthe applicable Mortgage as amended by the Mortgage Amendment (such opinion may take assumptions for any matters addressed in the local counsel opinion originally delivered in connection with the Mortgage);
(iii) an ALTA 11-06 endorsement to the existing title policy, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:
(ii) , along with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder a title search of the fee interest constituting real property to show that as of the date of such Mortgaged Property endorsement that the real property subject to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property is free and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or clear of all defects and encumbrances except those Liens permitted under such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral AgentMortgage;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, charges escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies Mortgage Amendment referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ixv) an Opinion such affidavits, certificates, information and instruments of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel indemnification as shall be in form and substance, and from counsel, reasonably satisfactory required to induce the title insurance company to issue the endorsement to the Administrative Agenttitle policy contemplated in this Section 10 and evidence of payment of all applicable title insurance premiums, search and examination charges, mortgage recording taxes and related charges required for the issuance of the endorsement to the title policy contemplated in this Section 10.
Appears in 1 contract
Samples: Amendment Agreement (Polyone Corp)
Mortgaged Properties. The Collateral Agent Trustee shall have received not later than 60 days after execute and furnish to the Closing Date (unless extended Master Servicer, at the Master Servicer's direction, any powers of attorney and other documents prepared by the Administrative Agent in Master Servicer and determined by the Master Servicer to be necessary or appropriate to enable the Master Servicer to carry out its sole discretion):
supervisory, servicing and administrative duties under this Agreement. The Master Servicer and each Servicer shall obtain (ito the extent generally commercially available from time to time) a Mortgage encumbering and maintain fidelity bond and errors and omissions coverage acceptable to Xxxxxx Xxx or Xxxxxxx Mac with respect to their obligations under this Agreement and the applicable Selling and Servicing Contract, respectively. The Master Servicer or each Mortgaged Property in favor Servicer, as applicable, shall establish escrow accounts for, or pay when due (by means of the Collateral Agentan advance), for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required tax liens in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent:
(ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary Properties that are not paid by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that Mortgagors when due to the extent that any such endorsement(s) payment would not constitute a Nonrecoverable Advance when made. Notwithstanding the foregoing, the Master Servicer shall not permit any modification with respect to any Mortgage Loan that would both constitute a sale or other documentation cannot be issued or is not available due to exchange of such Mortgage Loan within the state or condition meaning of Section 1001 of the Code (including any proposed, temporary or final regulations promulgated thereunder) (other than in connection with a proposed conveyance or assumption of such Mortgage Loan that is treated as a Principal Prepayment or in a default situation) and cause any of the REMICs to fail to qualify as such under the Code. The Master Servicer shall be entitled to approve a request from a Mortgagor for a partial release of the related Mortgaged Property, and such state the granting of an easement thereon in favor of another Person, any alteration or condition existed on demolition of the Closing Date (orrelated Mortgaged Property or other similar matters if it has determined, exercising its good faith business judgment in the case of a Mortgaged Property acquired after same manner as it would if it were the Closing Date, on the date owner of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect related Mortgage Loan, that the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentationsecurity for, and (E) contain no exceptions to title other than Permitted Liens the timely and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Propertyfull collectability of, such affidavits, certificates, information (including financial data) Mortgage Loan would not be adversely affected thereby and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which that the applicable Loan Party shall have used its commercially reasonable efforts trust fund would not fail to obtain and (y) shall otherwise be reasonably acceptable continue to qualify as a REMIC under the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company Code as a result thereof and that no tax on "prohibited transactions" or "contributions" after the startup day would be imposed on either REMIC as a result thereof. In connection with the servicing and administering of each Mortgage Loan, the Master Servicer and any affiliate of the absence Master Servicer (i) may perform services such as appraisals, default management and brokerage services that are not customarily provided by servicers of mortgage loans, and shall be entitled to reasonable compensation therefor and (ii) may, at its own discretion and on behalf of the Trustee, obtain credit information in the form of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then "credit score" from a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agentcredit repository.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (PNC Mortgage Securities Corp Mort Pass Thro Cert Ser 1999-4)
Mortgaged Properties. (a) There are no outstanding options, rights of first refusal, rights of first offer or similar rights to purchase or otherwise acquire any Mortgaged Property Owner's interest in any Mortgaged Property. Each Mortgaged Property Owner has good and marketable fee simple title to and/or a valid ground leasehold interest in each of its Mortgaged Properties and good title to the remainder of the Collateral purported to be owned or leased by it free and clear of all Liens, in each case except Permitted Encumbrances. All material fixtures, furnishings, attachments and equipment necessary for the operation, use and occupancy of each Mortgaged Property have been installed or incorporated into such Mortgaged Property and a Mortgaged Property Owner is the sole owner or lessee of all of the same, free and clear of all chattel mortgages, conditional vendor's liens and other Liens and security interests other than Permitted Encumbrances. No tax Liens have been filed against any Mortgaged Property Owner and/or any of the Mortgaged Properties, other than Liens for non-delinquent real property taxes.
(b) The Collateral Agent shall have received not later than 60 days after provisions of the Closing Date (unless extended by Security Documents are effective to create, perfect and maintain, upon proper filing or recording or taking of possession, as applicable, in favor of the Administrative Agent for the benefit of the Lenders, valid and legally enforceable Liens on all of the Mortgaged Properties and other Collateral purported to be encumbered thereby and, when all necessary recordings and filings have been effected in its sole discretion):
(i) all necessary public offices, and payment is made of any applicable mortgage recording, intangible and/or similar taxes, the Security Documents will constitute perfected Liens on all of such Mortgaged Properties and all of the other Collateral prior and superior to all other Liens except Permitted Encumbrances. Each Mortgage upon execution and delivery by a Subsidiary Guarantor will be a valid and enforceable first priority Lien on the Mortgaged Property that such Mortgage encumbering each purports to encumber, except for Permitted Encumbrances, and such Mortgage, when recorded in the property records of the county in which such Mortgaged Property is located and upon payment of any applicable mortgage recording, intangible and/or similar taxes, will be a valid and enforceable first priority Lien on such Mortgaged Property in favor of the Collateral Agent, Administrative Agent for the benefit of the Secured PartiesLenders, duly executed which Mortgaged Property will then be free and acknowledged clear of all Liens having priority over the first Lien of such Mortgage, except for Permitted Encumbrances. Each Assignment of Rents and Leases upon execution and delivery by each Loan Party that a Subsidiary Guarantor and recordation of such Assignment of Rents and Leases in the property records of the county in which the Mortgaged Property affected by such Assignment of Rents and Leases is the owner located and upon payment of any applicable recording or intangible taxes, will be a valid and enforceable first priority present assignment of or holder Lien on all Leases affecting such Mortgaged Property and of all Rents of and from such Mortgaged Property and of all security for such Leases (including, without limitation, cash or securities deposited as security under such Leases subject to the prior right of the Tenants making such deposits), free and clear of all Liens having priority over such Assignment of Rents and Leases, except for Permitted Encumbrances. No mechanic's liens have been filed and remain in effect against any interest in such Mortgaged Property, except as specifically disclosed and otherwise in form for recording insured against in the recording office of each applicable political subdivision where each Title Policy for such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such Policy. All filings (including all financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory UCC) have been delivered to the Administrative Agent for filing in the public office in which such filings are required or advisable to perfect the Liens on each of the Mortgaged Properties and the other Collateral Agent:
(ii) with respect granted pursuant to each Mortgaged Propertythe Security Documents and, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order except for the owner or holder filing of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage continuation statements with respect to such Mortgaged Property;financing statements as may be required to be filed at periodic intervals, no periodic refiling or periodic recording is presently required to protect and preserve such Liens.
(iiic) The use and operation of each Mortgaged Property as office, industrial or flex building(s) with respect related uses, separate and apart from any other properties, constitutes a legal use under applicable zoning regulations and complies in all material respects with all Applicable Laws, Property Agreements and Insurance Requirements and does not violate any Authorizations to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on which the Mortgaged Property Owner thereof is a party or by which such Mortgaged Property Owner or Mortgaged Property is bound, except for violations and fixtures described therein failures to comply which could not reasonably be expected to have, either individually or in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (eachaggregate, a “Title Policy”) shall (A) be issued by Material Adverse Effect. Neither the Title Company reasonably requested by the Collateral Agent, (B) zoning nor any right of access to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” adjacent public streets or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless use of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of is to any material extent dependent upon or related to any property other than such Mortgaged Property.
(d) There have been issued in respect of each Mortgaged Property all Authorizations necessary to own, operate, use and occupy such Mortgaged Property in the manner operated by the relevant Mortgaged Property Owner (including any required permits relating to Hazardous Materials) other than any such Authorizations which, if not issued, could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect. Neither the Borrower nor any Mortgaged Property Owner nor, to the knowledge of the Borrower, any prior owner thereof has received any notice of violation or revocation of such Authorizations except for those which, either individually or in the aggregate, could not reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(e) Except as otherwise disclosed in the Engineering Reports, (i) each Mortgaged Property is free of material structural defects and is in good repair (normal wear and tear excepted) and such state or condition does not all building systems and other items of Collateral therein are in good working order in all material respects (normal wear and tear excepted) and (ii) each Mortgaged Property is free and clear of any damage that would affect materially and adversely affect the use or the value of such Mortgaged Property or the use of such Mortgaged Property for its intended purposes. To the knowledge of the Borrower, except as otherwise disclosed in the Title Policies and Surveys, no improvement at any Mortgaged Property encroaches upon any building line, setback line, side yard line or any recorded or visible easement.
(f) No condemnation or other like proceedings (including relocation of any roadways abutting any Mortgaged Property or change in grade of such roadways or denial of access to any Mortgaged Property) that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect, are pending nor, to the knowledge of the Borrower, threatened against any Mortgaged Property in any manner whatsoever. No casualty has occurred to any Mortgaged Property that has had or could reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect.
(g) To the extent necessary for the business full utilization of each Mortgaged Property in accordance with its current use, telephone services, gas, steam, electric power, storm sewers, sanitary sewers and water facilities and all other utility services are available to such Mortgaged Property, are adequate to serve such Mortgaged Property, exist at the boundaries of such Mortgaged Property and are not subject to any conditions, other than normal charges to the utility supplier, which would limit the use of such utilities. All streets and easements necessary for access to and the occupancy and operation of each Mortgaged Property are available at the boundaries of such Mortgaged Property. All necessary rights-of-way for all roads, which are sufficient to permit each Mortgaged Property to be utilized fully for its current use, have been completed and are serviceable, and, to the knowledge of the Company Borrower, all public rights-of-way through or adjacent to each Mortgaged Property have been acquired and its Affiliatesdedicated and accepted for maintenance and public use by the applicable Governmental Authorities.
(h) Except as otherwise disclosed in the Environmental Reports, none of the Borrower shall have no obligation to procure such endorsement improvements on any Mortgaged Property are constructed on land designated by any Governmental Authority having jurisdiction as wetlands.
(i) Each Mortgaged Property is comprised of one or other documentationmore parcels, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable each of which, to the Collateral Agent;knowledge of the Borrower, constitutes a separate tax lot and none of which constitutes a portion of any other tax lot.
(ivj) Each of the Material Leases with respect to each Mortgaged PropertyProperty is in full force and effect and no Person has failed in any respect to perform any obligation or covenant or satisfy any condition required by any of such Material Leases to be performed or complied with, such affidavitsexcept where failure to so perform or comply has not had and could not reasonably be expected to have, certificateseither individually or in the aggregate, information (including financial data) and instruments a Material Adverse Effect. No litigation is currently pending or has been threatened by any Person in connection with any of indemnification (including the Material Leases that has had, or could reasonably be expected to have, either individually or in the aggregate, a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;Material Adverse Effect.
(vk) evidence reasonably acceptable to The leasing, maintenance and operation of each of the Collateral Agent of payment Mortgaged Properties is managed by the Borrower, the Co-Borrower if formed or a Wholly-Owned Subsidiary of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if anyCo-Borrower. To the extent any All of the foregoing leases affect any Mortgaged Property, such leases shall (x) be management rights are subject and subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative AgentSecurity Documents.
Appears in 1 contract
Mortgaged Properties. The Collateral Agent shall have received not later than Within 60 days after the Closing Date (unless extended by Seventh Amendment Effective Date, execute and deliver to the Administrative Agent in its sole discretion):form and substance satisfactory to the Administrative Agent the following certificates and documents with respect to each property ("Mortgaged Property") listed in Schedule 9.14:
(ia) a Mortgage encumbering each Mortgaged Property mortgage or a deed of trust, as applicable ("Mortgage"), in favor of of, or for the Collateral Agentbenefit of, the Administrative Agent for the benefit of the Secured PartiesLenders, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:;
(iib) any material governmental and third party approvals (including landlords' and other consents) necessary in connection with respect creating each Mortgage;
(c) to the extent existing and requested by the Administrative Agent, a written environmental assessment regarding each Mortgaged Property, such consentsprepared by an environmental consultant acceptable to the Administrative Agent, approvalsin form, amendmentsscope, supplementsand substance satisfactory to the Administrative Agent, estoppels, tenant subordination agreements or other instruments together with a letter from the environmental consultant permitting the Administrative Agent and the Lenders to rely on the environmental assessment as necessary if addressed to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order and prepared for the owner or holder each of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Propertythem;
(iiid) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably if requested by the Collateral Administrative Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value an appraisal of the insured property up to value, or a stated maximum coverage amount)valuation, (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as which shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent; and
(i) if requested by the Administrative Agent, maps or plats (to the extent maps or plats are available in the states where the Mortgaged Property is located) of an as-built survey of the sites of the Mortgaged Properties prepared by an independent professional licensed land surveyor reasonably satisfactory to the Administrative Agent and the Title Insurance Company (as defined below) (and certified by such surveyor to the Administrative Agent and the Title Insurance Company), any such maps or plats and the surveys on which they are based being made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such maps, plats or surveys the following: (A) the locations on such sites of all the buildings, structures and other improvements and the established building setback lines; (B) the lines of streets abutting the sites and width thereof; (C) all access and other easements appurtenant to the sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to the surveyor; (E) any encroachments on any adjoining property by the building structures and improvements on the sites; (F) if the site is described as being on a filed map, a legend relating the survey to said map; and (G) the flood zone designations, if any, in which the Mortgaged Properties are located;
(ii) a mortgagee's title insurance policy (or policies) or marked up unconditional binder for such insurance, along with evidence satisfactory to the Administrative Agent that all premiums in respect of each such policy, all charges for mortgage recording tax, and all related expenses, if any, have been paid. Each such policy shall (A) be in an amount reasonably satisfactory to the Administrative Agent, but not greater than the amounts of the Liens described in Schedule 9.14; (B) be issued at ordinary rates; (C) insure that the Mortgage insured thereby creates a valid first lien on such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed therein; (D) name the Administrative Agent for the benefit of the Lenders as the insured thereunder; (E) be in the form of ALTA Loan Policy - 1970 (Amended 10/17/70 and 10/17/84) (or equivalent policies); (F) contain such endorsements and affirmative coverage as the Administrative Agent may reasonably request and (G) be issued by a title company ("Title Insurance Company") satisfactory to the Administrative Agent (including any such title companies acting as co-insurers or reinsurers, at the option of the Administrative Agent);
(iii) if requested by the Administrative Agent and if applicable to any Mortgaged Property, (A) a policy of flood insurance that (1) covers any parcel of improved real property that is encumbered by any Mortgage and (2) is written in an amount not less than the outstanding principal amount of the indebtedness secured by such Mortgage that is reasonably allocable to such real property or the maximum limit of coverage made available with respect to the particular type of property under the National Flood Insurance Act of 1968, whichever is less, (B) confirmation that the Borrowers have received any notice delivered as required pursuant to Section 208.25(i) of Regulation H of the Board of Governors of the Federal Reserve System of the United States and (C) cooperate in maintaining the policy or policies described in clause (A) hereof in full force until the Loans have matured;
(iv) all recorded documents referred to, or listed as exceptions to title in, the title policy or policies referred to in clause (ii) above and a copy of all other material documents affecting title to the Mortgaged Properties; and
(v) such legal opinions and evidence of corporate action in respect of such Mortgages as the Administrative Agent shall reasonably request.
(i) Amendment to Subsection 10.1
Appears in 1 contract
Samples: Credit and Guarantee Agreement (Bush Industries Inc)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 days At any time and from time to time after the Closing Date, in connection with the sale or other permanent disposition of any Mortgaged Property, but subject to Section 2.15, Borrower may obtain a Release of the Lien of the Security Documents in respect of all, but except as provided below not a portion of, such Mortgaged Property subject to the following terms and conditions on the applicable Release Date; provided that no Mortgaged Property shall be Released within three months of the Addition Date (unless extended by the Administrative Agent in its sole discretion):of such Mortgaged Property:
(i) a Mortgage encumbering each Borrower shall have delivered written notice to the Agent (a) not less than 30 days (or such shorter period as shall be acceptable to the Agent) prior to the proposed Release Date specifying the proposed Release Date and such Mortgaged Property in favor and (b) not less than five (5) days prior to the actual Release Date specifying such actual Release Date and such Mortgaged Property;
(ii) no Event of Default or Potential Event of Default shall have occurred and be continuing as of the Collateral Agent, for the benefit date of the Secured Partiesdelivery of the notice pursuant to clause (i) above (other than any which will be cured by such Release and, duly executed if applicable, the application of proceeds in connection therewith) and acknowledged no Event of Default or Potential Event of Default shall be continuing as of the Release Date after giving effect to such Release;
(iii) concurrently with such Release, the Borrowing Base shall be recomputed by each Loan Party that is giving effect to such Release;
(iv) Borrower shall have prepaid the owner Loans in the amount required by Section 2.
(v) Borrower shall have delivered to the Agent and the Lenders (a) an Officer's Certificate dated the Release Date, certifying as to the matters referred to in clause (ii) above, and (b) a Borrowing Base Certificate setting forth in reasonable detail the computation of or holder the Borrowing Base as of the Release Date and after giving effect to such Release;
(vi) Borrower, at its sole cost and expense, shall have (a) with respect to any interest partial Release of the Lien of the Security Documents in respect of such Mortgaged Property, and otherwise delivered to the Agent one or more endorsements to the Title Policy in form for recording in the recording office respect of each applicable political subdivision where each such Mortgaged Property insuring that, after giving effect to such partial Release and with respect to the portion of such Mortgaged Property which is situatednot being Released, together with the Liens created by the applicable Mortgage and insured under such certificatesTitle Policy are in full force and effect and unaffected by such partial Release as to the remaining portion of such Mortgaged Property, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, (b) prepared any and such financing statements all documents and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdictioneffect such Release, all of which shall be satisfactory in form and substance reasonably satisfactory to the Collateral Agent:, and (c) paid all reasonable costs and expenses incurred by the Agent and its counsel in connection with the review, execution and delivery of the release documents; and
(iivii) all other proceedings taken or to be taken in connection with respect such Release and all documents incidental thereto shall be satisfactory in form and substance to each Mortgaged Property, the Agent and the Agent's counsel. The Agent and such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements counsel shall have received all such counterpart originals or other instruments certified copies of such documents as necessary to consummate the Transactions or as Agent may reasonably request and counsel for the Agent shall reasonably be deemed necessary by the Collateral Agent have received such documents and evidence that such counsel shall require in order for to establish compliance with the owner or holder conditions set forth in this Section 2.14. Borrower may obtain a Release of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein Security Documents in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case respect of a Mortgaged Property acquired after the Closing Date, on the date portion of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, if title to such leases shall (x) be subordinate to portion has been permanently Taken, by complying with the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its foregoing terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which conditions on the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative AgentRelease Date.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Corporate Office Properties Trust)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 days after (a) Borrower has good and marketable title to all of its assets and properties, and each Executing Subsidiary has good and marketable title to the Closing Date applicable Mortgaged Property, subject to no mortgage, security interest, pledge, lien, charge, encumbrance or title retention or other security agreement or arrangement of any nature whatsoever, except Permitted Encumbrances. Borrower and the applicable Executing Subsidiary will forever warrant and defend the title of the Mortgaged Properties against the lawful claims and demands of all persons whomsoever (unless extended by subject to the Administrative Agent Permitted Encumbrances) for such Mortgaged Properties.
(b) There are no pending or, to the best knowledge of Borrower, threatened proceedings or actions to revoke, attack, invalidate, rescind, or modify in its sole discretion):
any material respect (i) a Mortgage encumbering each the zoning of any Mortgaged Property in favor of or any part thereof, or (ii) any building or other permits heretofore issued with respect to any Mortgaged Property or any part thereof, or asserting that any such zoning or permits do not permit the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder operation of any interest in Mortgaged Property or any part thereof or that any improvements located on such Mortgaged Property, and otherwise Property cannot be operated in form for recording accordance with its intended use or is in the recording office violation of each applicable political subdivision where Use Requirements.
(c) The Mortgage covering each such Mortgaged Property creates a valid and enforceable first Lien on such property described therein, as security for the repayment of the Indebtedness incurred by Borrower hereunder and under the other Loan Documents, subject only to the Permitted Encumbrances applicable to such Mortgaged Property.
(d) The Collateral Pool is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Lawnow, and such financing statements and so long as the Loan remains in effect or any other instruments necessary monetary obligation to grant a mortgage lien Agent or the Lenders hereunder or under the laws Promissory Notes or the other Loan Documents shall remain unpaid, will be owned solely by Borrower or the applicable Executing Subsidiary, and said Collateral Pool, including the proceeds resulting from the sale or other disposition thereof, is and will remain free and clear of any applicable jurisdiction, all of which shall be in form Liens except the Permitted Encumbrances and substance reasonably satisfactory the other Liens granted pursuant to the Loan Documents to Agent and the Lenders, which Liens to Agent and the Lenders shall, at all times, be first and prior on the Collateral Agent:Pool and all proceeds resulting from the sale or other disposition thereof, and no further action need be taken to perfect said Liens.
(iie) with Neither the existence of any improvements upon a Mortgaged Property nor the present use or condition of any Mortgaged Property violate in any material respect any Use Requirements. With respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or neither the zoning nor any other instruments as necessary right to consummate carry on the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder present use of the fee interest constituting such Mortgaged Property is to grant any extent dependent upon or related to any other real estate. Each Mortgaged Property may be operated in its current fashion and Borrower has received no written notices from any Governmental Authorities alleging any violation by any Mortgaged Property of any Requirement of Law, including but not limited to applicable Use Requirements.
(f) There are no pending or, to the Lien knowledge of Borrower, contemplated or threatened proceedings relating to any (i) taking by the Mortgage with respect eminent domain or other condemnation of any portion of any Mortgaged Property, (ii) condemnation or relocation of any roadways abutting any Mortgaged Property and (iii) denial of access to any Mortgaged Property from any point of access to such Mortgaged Property;.
(iiig) Each Mortgaged Property has adequate and permanent legal access to water, gas, and electrical supply, storm, and sanitary sewerage facilities, other required public utilities (with respect to each Mortgage, of the aforementioned items by means of either a policy of title insurance (or marked up title insurance commitment having direct connection to the effect of a policy of title insurance) insuring the Lien source of such Mortgage as a valid first mortgage Lien utilities or through connections available on the publicly dedicated roadways directly abutting such Mortgaged Property), parking, and means of access between such Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary public highways over recognized curb cuts; and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value all of the insured property up foregoing comply with all applicable Use Requirements.
(h) Each Mortgaged Property is taxed separately without regard to any other real estate and constitutes a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date legally subdivided lot under all applicable Use Requirements (or, in the case of a Mortgaged Property acquired after the Closing Dateif not subdivided, on the date of the acquisition of such Mortgaged Property) and such state no subdivision or condition does not materially and adversely affect the use or the value platting of such Mortgaged Property for the business is required under applicable Requirements of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentationLaw), and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of for all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to purposes each Mortgaged Property described abovemay be mortgaged, which Opinion of Counsel shall be in form and substanceconveyed, and from counsel, reasonably satisfactory to the Administrative Agentotherwise dealt with as an independent parcel.
Appears in 1 contract
Samples: Credit Agreement (G Reit Inc)
Mortgaged Properties. The Collateral Agent (a) If any Mortgaged Property is encumbered by a Lien which is not a Permitted Encumbrance, the Borrower shall, or shall have received not later than 60 cause its Subsidiaries to, promptly discharge or cause to be discharged by payment to the lienor or lien claimant or promptly secure removal by bonding or deposit with the county clerk or otherwise or, at the Administrative Agent's option, promptly obtain insurance against, any such Lien within thirty (30) days after the Closing Date date of notice thereof, but compliance with the provisions of this Section 8.15(a) shall not be deemed to constitute a waiver of the provisions of Section
9.01. The Borrower shall fully preserve the Lien and the priority of each of the Security Documents without cost or expense to the Administrative Agent or the Lenders.
(unless extended b) If the Borrower or any of its Subsidiaries shall fail to promptly discharge, remove or bond off any Lien which is not a Permitted Encumbrance within thirty (30) days after the date of notice thereof, then the Administrative Agent may, but shall not be required to, procure the release and discharge of such Lien, and any judgment or decree thereon, and in furtherance thereof may, in its sole discretion, effect any settlement or compromise with the lienor or post any bond or furnish any security or indemnity as the Administrative Agent, in its sole discretion, may elect. In settling, compromising or arranging for the discharge of any Lien under this Section 8.15(b), the Administrative Agent shall not be required to establish or confirm the validity or amount of the Lien. The Borrower agrees that all costs and expenses expended or otherwise incurred by the Administrative Agent pursuant to this Section 8.15(b) (including, without limitation, reasonable attorneys' fees and disbursements) shall be paid by the Borrower to the Administrative Agent promptly following demand therefor.
(c) The Administrative Agent may at any time obtain an updated title and/or lien search regarding any Mortgaged Property or any other Collateral, and any such search shall be at the expense of the Borrower if it is being done (i) because the Administrative Agent reasonably believes that a Lien which is not a Permitted Encumbrance may encumber any Mortgaged Property or other Collateral, (ii) following a change in its sole discretion):Applicable Laws or the state or organization of any Mortgaged Property Owner or (iii) after the occurrence and during the continuation of an Event of Default.
(i) The Borrower has delivered to the Administrative Agent the following Appraisals and reports with respect to each of the Initial Mortgaged Properties: (x) an Appraisal, (y) a Mortgage encumbering each Mortgaged Property written Phase I environmental report (and if recommended by such report, a written Phase 2 environmental report) in favor of the Collateral Agent, for Administrative Agent and prepared and certified by an environmental consultant satisfactory to the benefit Administrative Agent and (z) an engineering report in favor of the Secured PartiesAdministrative Agent and prepared and certified by an engineer satisfactory to the Administrative Agent. In the event that the Administrative Agent notifies the Borrower on or prior to January 15, duly executed and acknowledged by each Loan Party 2003 that any such Appraisal or report is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be not reasonably satisfactory in form and substance reasonably to the Required Lenders, the applicable Initial Mortgaged Property shall, 15 Business Days following such notification by the Administrative Agent, be deemed an Excluded Mortgaged Property and excluded from the calculation of the Borrowing Base Value until the date, if any, on which the Administrative Agent notifies the Borrower that such Appraisal or report, as applicable, is satisfactory to the Collateral Agent:Required Lenders as aforesaid. On the date that any Initial Mortgage Property is deemed an Excluded Mortgaged Property and excluded from the calculation of the Borrowing Base Value pursuant to this Section 8.15(d)(i), the Borrower shall deliver to the Administrative Agent (A) a new Borrowing Base Certificate pursuant to Section 8.01(j)(v) and (B) any repayment of outstanding Loans as, and to the extent, required by Section 4.02(b).
(ii) The Borrower covenants and agrees (x) to determine to the reasonable satisfaction of the Administrative Agent (by means of a Phase II environmental audit report with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements subsurface soil and/or groundwater or by other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, means reasonably satisfactory to the Administrative Agent) not later than March 31, 2003 whether the Initial Mortgaged Property known as Newmarket Business Park and referred to as item 3 in Schedule III is subject to or otherwise affected by any adverse environmental conditions or Environmental Claims as a result of the operation of a gasoline service station formerly located thereon, and (y) to cause the applicable Mortgaged Property Owner to comply with its obligations under the Environmental Indemnity with respect to any such adverse environmental conditions or Environmental Claims. In the event that the Borrower fails to comply with its obligations under clause (x) of the immediately preceding sentence on or prior to March 31, 2003, such Initial Mortgaged Property shall on such date be deemed an Excluded Mortgaged Property and excluded from the calculation of the Borrowing Base Value until the date, if any, on which the Administrative Agent notifies the Borrower that it has determined that the Borrower has fully complied with clause (x) of the immediately preceding sentence. On the date that any Initial Mortgage Property is deemed an Excluded Mortgaged Property and excluded from the calculation of the Borrowing Base Value pursuant to this Section 8.15(d)(ii), the Borrower shall deliver to the Administrative Agent (A) a new Borrowing Base Certificate pursuant to Section 8.01(j)(v) and (B) any repayment of outstanding Loans as, and to the extent, required by Section 4.02(b).
(iii) The Borrower covenants and agrees to cause each underground storage tank for Hazardous Material located at the Initial Mortgaged Properties known as 9800 La Cienega Boulevard, Inglewood, California and St. Louis Place, Xx. Xxxxx, Xxxxxxxx xxx xxxxxxxx xx xx xxxxx 0 and 11 of Schedule III to comply in all material respects with the requirements of all applicable Environmental Laws or to cause any such underground storage tank which does not so comply to be removed, in any case not later than March 31, 2003. In the event that the Borrower fails to comply with its obligations under the immediately preceding sentence with respect to any of such Initial Mortgaged Properties on or prior to March 31, 2003, the applicable Initial Mortgaged Property shall on such date be deemed an Excluded Mortgaged Property and excluded from the calculation of the Borrowing Base Value until the date, if any, on which the Administrative Agent notifies the Borrower that it has determined that the Borrower has satisfied its obligations under the immediately preceding sentence. On the date that any Initial Mortgage Property is deemed an Excluded Mortgaged Property and excluded from the calculation of the Borrowing Base Value pursuant to this Section 8.15(d)(iii), the Borrower shall deliver to the Administrative Agent (A) a new Borrowing Base Certificate pursuant to Section 8.01(j)(v) and (B) any repayment of outstanding Loans as, and to the extent, required by Section 4.02(b).
(iv) The Borrower covenants and agrees (x) to implement in all material respects all asbestos operations and maintenance plans as in effect on the Effective Date with respect to the Initial Mortgaged Properties known as Northstar Center, Minneapolis, Minnesota and 500 Jefferson, Houston, Texas and referred to as items 6 and 7 in Scxxxxxx XXX xxx (x) xxxxxxxxx to comply with all applicable Environmental Laws relating to the identification, presence, containment and removal of asbestos-containing and suspected asbestos-containing materials at the Mortgaged Properties.
Appears in 1 contract
Mortgaged Properties. The Collateral Administrative Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion):
(i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Administrative Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:
(ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Administrative Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first second mortgage Lien (subject only to the Lien in favor of the Term Loan Lenders) on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Administrative Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Administrative Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Administrative Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Administrative Agent) as shall be reasonably requested by the Collateral Administrative Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); , provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Administrative Agent;.
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Administrative Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Administrative Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Administrative Agent, provided that, if the Collateral Administrative Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Administrative Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Mortgaged Properties. The Collateral Agent shall properties herein mortgaged and assigned (the Mortgaged Properties) are the following:
2.1 The personal properties set forth and particularly described and located on any property, owned or leased, and inventory, goods held for sale or lease or be furnished under contracts for service, or goods, so leased or furnished, raw materials, component parts, work in process and other materials used or consumed in the business, now or at any time hereafter owned or acquired by Mortgagor, wherever located, and all products thereof, whether in the possession of Mortgagor, any warehousemen, any bailee or any other person, or in process of delivery, and whether located at Mortgagor’s places of business or elsewhere, all as indicated in the List of Mortgaged Personal Properties attached to and which form an integral part hereof as Annex “A”, all improvements, replacements, substitutions, increases, additions, accessories, and accretions thereto and embedded software included therein, all such goods after they have received been severed and removed from any of said real property, whether or not later than 60 days after covered by a separate list or supplemental mortgage and whether or not separately registered, and all additional properties or collateral hereafter mortgaged or deemed mortgaged under the Closing Date terms hereof (unless extended by the Administrative Agent in its sole discretionMortgaged Personal Properties).
2.2 Any and all of the Mortgagor’s receivables including but not limited to the following (the Assigned Receivables):
(a) All monies now or hereafter payable to the Mortgagor by:
(i) a Mortgage encumbering each Mortgaged Property in favor any person for services rendered by the Mortgagor pursuant to its business including but not limited to the monies to be paid by its clients and customers pursuant to the service Agreements, letters of the Collateral Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Propertyintent, and otherwise other similar contracts identified in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent:Annex “B” hereof;
(ii) with respect any person pursuant to each Mortgaged Propertyany agreement including, such consentsbut not limited to liquidated damages, approvalsinsurance claims, amendmentswarranties, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Propertyand guarantees;
(iii) with any person in respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect sales of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens assets and other exceptions reasonably acceptable to the Collateral Agentcash inflows;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) the Government of the Republic of the Philippines for tax recoveries and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated aboverefunds paid in cash;
(v) evidence reasonably acceptable to the Collateral Agent other parties in respect of payment by the Borrower proceeds of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses any performance security or guarantee required for the recording of the Mortgages and issuance of the title policies referred to above;under any agreement; and
(vi) with respect to each Mortgaged Propertyall other receivables received by or for the account of the Mortgagor.
(b) All monies whether in the form of principal, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest interest, coupons, or other agreements relating to possessory interests if any. To fruits in the extent any of bank accounts listed in Annex “C”, now or hereafter existing (the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral AgentAssigned Deposits);
(viic) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing Any and all exceptions which would otherwise have been raised by the Title Company as a result proceeds of the absence of a new Survey for such Mortgaged Propertyreceivables in Section 2.2(a) above, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Propertynow or hereafter existing; and
(ixd) an Opinion All receivables of Counsel relating the kind described in Section 2.2(a) above which the Mortgagor may acquire at any time during the continuation of this Mortgage.
2.3 Any and all of its rights, title and interest, including but not limited to each Mortgaged Property the following (the Assigned Rights), including the rights arising from the contracts and documents held by Mortgagor:
(a) all chattel paper (including without limitation, all tangible chattel paper and all electronic chattel paper);
(b) all letter of credit rights (whether or not the respective letter of credit is evidenced by writing);
(c) all computer programs of the Mortgagor and all intellectual property rights therein and all other proprietary information of the Mortgagor including but not limited to domain names and trade secret rights;
(d) all copyrights;
(e) all patents;
(f) all marks, together with the registration and right to all renewals thereof, and the goodwill of the business of the Mortgagor symbolized by the marks;
(g) all licenses, management contracts, marketing and sales agreements, escrow contracts, indemnity agreements, insurance policies, service or maintenance agreements, supporting obligations and other similar contracts of every kind in which together with all rights arising thereunder;
(h) all permits, to the extent transferable under the terms thereof;
(i) all general intangibles;
(j) all supporting obligations;
(k) all guarantees and warranties;
(l) all accounts, deposit accounts, contract rights, instruments, promissory notes, documents, payment intangibles, investment property, software, health-care insurance receivables and other rights to payment of every kind now existing or at any time hereafter arising;
(m) all money and property heretofore, now or hereafter delivered to or deposited with ender or otherwise coming into the possession, custody or control of ender (or any agent or bailee of Lender) in any manner or for any purpose whatsoever during the existence of this Agreement and whether held in a general or special account or deposit for safekeeping or otherwise;
(n) all insurance policies, including any renewals thereof; and
(o) all rights of the kind described abovein paragraphs (a) to (o) of this Section 2.3 which the Mortgagor may acquire at any time during the continuation of this Mortgage or any proceeds thereof.
2.4 During the effectivity of this Mortgage, which Opinion the Mortgagor shall send a written notice to the Lender of Counsel any acquisition of any (i) additional personal property as contemplated in Section 2.1 with a value of at least Php1,000,000.00, in a single or series of transactions; or (ii) new or additional receivables pursuant to new, renewed, or supplemental service contracts or similar agreements pursuant to Section 2.2(c). Such written notice shall be sent within 30 Business Days: (i) in form case of additional personal property, from the date of acquisition of personal property worth at least Php1,000,000.00 in a single transaction (or, in case of a series of transactions, from the date of the purchase which will cause the value of the property purchased to exceed Php1,000,000.00); and substance(ii) in case of new receivables, and from counsel, reasonably satisfactory the date of the execution of the contract. The notice shall be accompanied with a supplemental mortgage (the Mortgage Supplement) to the Administrative Agentcover such additional personal property or additional receivables.
Appears in 1 contract
Samples: Mortgage and Assignment Agreement (eTelecare Global Solutions, Inc.)
Mortgaged Properties. The Collateral Agent shall have received not later than 60 Within ninety (90) days after the Closing Date (Amendment No. 1 Effective Date, unless waived or extended by the Administrative Agent in its sole discretion):, with respect to each real property encumbered by a Mortgage, the Administrative Agent shall have received, with respect to the existing Mortgages, the following, in each case in form and substance reasonably acceptable to the Administrative Agent:
(i) a an amendment to the existing Mortgage encumbering each Mortgaged Property (the “Mortgage Amendment”) to reflect the matters set forth in favor of the Collateral Agent, for the benefit of the Secured Partiesthis Amendment, duly executed and acknowledged by each the applicable Loan Party that is the owner of or holder of any interest in such Mortgaged PropertyParty, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situatedMortgage was recorded, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements law;
(ii) a favorable opinion, addressed to the Administrative Agent and the Secured Parties covering, among other things, the due authorization, execution, delivery and enforceability of Lawthe applicable Mortgage as amended by the Mortgage Amendment (such opinion may take assumptions for any matters addressed in the local counsel opinion originally delivered in connection with the Mortgage);
(iii) an ALTA 11-06 endorsement to the existing title policy, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:
(ii) , along with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder a title search of the fee interest constituting real property to show that as of the date of such Mortgaged Property endorsement that the real property subject to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property is free and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or clear of all defects and encumbrances except those Liens permitted under such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral AgentMortgage;
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, charges escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies Mortgage Amendment referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ixv) an Opinion such affidavits, certificates, information and instruments of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel indemnification as shall be in form and substance, and from counsel, reasonably satisfactory required to induce the title insurance company to issue the endorsement to the Administrative Agenttitle policy contemplated in this Section 10 and evidence of payment of all applicable title insurance premiums, search and examination charges, mortgage recording taxes and related charges required for the issuance of the endorsement to the title policy contemplated in this Section 10.
Appears in 1 contract
Samples: Amendment Agreement (Polyone Corp)
Mortgaged Properties. The Collateral Except to the extent provided in Section 5.13, the Administrative Agent shall have received not later than 60 days after the Closing Date (unless extended by the Administrative Agent in its sole discretion):with respect to each Mortgaged Property:
(i) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Administrative Agent, for the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Administrative Agent:
(ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions execution of such Mortgage or as shall reasonably be deemed necessary by the Collateral Administrative Agent in order for the owner or holder of the fee interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each Mortgage, a policy of title insurance (or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first second mortgage Lien (subject only to the Lien securing the Term Loan Obligations) on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Administrative Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Administrative Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Administrative Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Administrative Agent) as shall be reasonably requested by the Collateral Administrative Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) Property and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Administrative Agent;.
(iv) with respect to each Mortgaged Property, such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Administrative Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Collateral Administrative Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Administrative Agent, ; provided that, if the Collateral Administrative Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Administrative Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Mortgaged Properties. (a) On the Closing Date, and on the date of the addition of any Real Property Asset to the Mortgaged Properties, as applicable, or as soon thereafter as is practicable, the Lead Agent shall cause all of the Mortgages, the Assignments, the Environmental Indemnities and the Financing Statements (collectively, the "Security Documents") (which are to be recorded and/or filed) to be recorded and/or filed in the appropriate offices, as security for the Loans, at the Borrower's sole cost and expense. Upon such addition, the Borrower shall cause to be delivered to the Lead Agent, at the Borrower's sole cost and expense, the Title Policies, and the Borrower will cooperate with the Lead Agent and execute such further instruments and documents and perform such further acts as the Lead Agent or the Title Company shall reasonably request to carry out the creation and perfection of the liens and security interests contemplated by the Security Documents.
(a) The Collateral Lead Agent shall have the one-time right with respect to each Real Property Asset which is or becomes a Mortgaged Property, prior to the Maturity Date, as the same may be extended from time to time in accordance with the provisions hereof, to commission, at the Borrower's sole cost and expense, an updated Appraisal, and shall deliver copies of each such Appraisal to each Bank and to the Borrower promptly after receipt thereof by the Lead Agent. Only an Appraisal ordered in compliance with this subparagraph (b) may be used in calculating the LTV Ratio.
(b) The Borrower shall be entitled to have one (1) or more of the Mortgaged Properties released from the Lien of this Mortgage; provided, that the Loans outstanding subsequent to such release do not cause (i) the LTV Ratio with respect to the remaining Mortgaged Properties to exceed the Permitted LTV Ratio or (ii) the Minimum Debt Service Coverage to be exceeded; provided, further, that all of the conditions set forth below have been satisfied. The release of any of the Mortgaged Properties shall be subject to the satisfaction of the following conditions:
(i) Lead Agent shall have received not later than 60 days after from the Closing Date (unless extended by the Administrative Agent in its sole discretion):
(i) a Mortgage encumbering each Mortgaged Property in favor Borrower at least 30 days' prior written notice of the Collateral Agent, date proposed for such release (the benefit of the Secured Parties, duly executed and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be in form and substance reasonably satisfactory to the Collateral Agent:"Release Date");
(ii) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments no Event of Default shall have occurred and be continuing as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee interest constituting date of such Mortgaged Property to grant notice and the Lien contemplated by the Mortgage with respect to such Mortgaged PropertyRelease Date;
(iii) the Borrower shall pay to the Lead Agent for the account of the Banks, the amounts, if any, required to be paid so that the Permitted LTV Ratio and Minimum Debt Service Coverage requirements continue to be met with respect to each Mortgagethe remaining Mortgaged Properties, a policy of title insurance including any additions thereto; 37
(or marked up title insurance commitment having the effect of a policy of title insuranceiv) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (or, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value of such Mortgaged Property for the business of the Company and its Affiliates, the Borrower shall have no obligation to procure such endorsement or other documentation, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable delivered to the Collateral Agent;
Lead Agent an officer's certificate, dated the Release Date, confirming the matters referred to in clause (ivii) above, certifying that the provisions of clause (iii) above have been complied with respect to each Mortgaged Property, and certifying that all conditions precedent for such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required to induce the Title Company to issue the title policy/ies and endorsements contemplated aboverelease contained in this Agreement have been complied with;
(v) evidence reasonably acceptable the Borrower, at its sole cost and expense, shall have delivered to the Collateral Lead Agent, one or more endorsements to the mortgagee policy of title insurance delivered to the Lead Agent of payment in connection with this Agreement insuring that, after giving effect to such release, (x) the Liens created by the Borrower of all title Mortgage and insured thereunder are first priority Liens on the respective remaining Mortgaged Properties subject only to the permitted exceptions permitted pursuant to the Mortgage applicable to the remaining Mortgaged Properties and (y) that such policy premiums, search is in full force and examination charges, escrow charges effect and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;unaffected by such release; and
(vi) with respect there shall be no fewer than two (2) Mortgaged Properties at any one time. Upon or after payment of any amounts required to each Mortgaged Property, copies be paid pursuant to clause (iii) above and the satisfaction of all leases other conditions provided for herein, the Lead Agent shall effectuate the following (hereinafter referred to as a "Property Release"): the security interest of the Banks in which the Borrower or any Subsidiary holds the lessor’s interest or Mortgage and other agreements Loan Documents relating to possessory interests if any. To the extent any of the foregoing leases affect any released Mortgaged Property, such leases Property shall (x) be subordinate to released from the Lien of the Mortgage and the Lead Agent will execute and deliver any agreements reasonably requested by the Borrower to be recorded against such release and terminate or reassign, at the Borrower's option, the Mortgage as to the released Mortgaged Property; provided, either expressly by its terms that such release and termination or pursuant to a subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable reassignment shall be without recourse to the Collateral Agent, with respect to which Lead Agent (except as contemplated hereby) and without any representation or warranty except that the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Lead Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have represented that such release and termination or reassignment has been reasonably accepted by duly authorized and that it has not assigned or encumbered the Collateral Mortgage or the other Loan Documents relating to the released Mortgaged Property (except as contemplated hereby) and the Lead Agent shall return the originals of any Loan Documents that relate solely to the released Mortgaged Property to the Borrower; provided, further, that upon the release and termination or reassignment of the Lead Agent;
(vii) Surveys 's security interest in the Mortgage relating to the released Mortgaged Property all references herein to the Mortgage relating to the released Mortgaged Property shall be deemed deleted, except as otherwise provided herein with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agentindemnities.
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Samples: Revolving Credit Agreement (Carramerica Realty Corp)
Mortgaged Properties. (a) The Collateral Agent shall have received Borrower will not, nor will the Borrower permit any of its Subsidiaries to, initiate or consent to any zoning reclassification of any Mortgaged Property or seek any material variance under any existing zoning ordinance or use or permit the use of any Mortgaged Property in any manner that could result in such use becoming a non-conforming use under any zoning ordinance or any other applicable land use law, rule or regulation. The Borrower will not, nor will the Borrower permit any of its Subsidiaries to, initiate or consent to any change in any Applicable Laws which now or hereafter could reasonably be likely to materially and adversely affect the ownership, occupancy, use or operation of any Mortgaged Property.
(b) The Borrower will not, nor will the Borrower permit any of its Subsidiaries to, suffer, permit, initiate or consent to, directly or indirectly, the joint assessment of any Mortgaged Property with any other Real Property constituting a separate tax lot that is not later than 60 days after a Mortgaged Property.
(c) The Borrower will not, nor will the Closing Date (unless extended by Borrower permit any of its Subsidiaries to, transfer any Mortgaged Property which has not been removed from the Administrative Agent Borrowing Base in its sole discretion):
accordance with Section 8.13(b); provided that so long as (i) no Specified Default or Event of Default then exists or would result therefrom and (ii) such transfer would not cause such Mortgaged Property to fail to satisfy the Mortgaged Property Conditions, a Mortgage encumbering each Mortgaged Property Owner may transfer a Mortgaged Property in favor its entirety at any time to another Subsidiary of the Collateral Agent, for Borrower which is (or at the benefit time of the Secured Parties, duly executed such transfer becomes) a Credit Party pursuant to transfer and acknowledged by each Loan Party that is the owner of or holder of any interest in such Mortgaged Property, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Mortgaged Property is situated, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a lien under applicable Requirements of Law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall be assumption documentation in form and substance reasonably satisfactory to the Collateral Administrative Agent:
; and provided further that so long as no Specified Default or Event of Default then exists, a Mortgaged Property Owner may (iix) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements sell any equipment or other instruments personal property included in the Collateral as necessary long as it has replaced the items sold with other Property of at least comparable value and utility and caused such other Property to consummate the Transactions or as shall reasonably be deemed necessary encumbered by the Collateral Agent in order for the owner or holder Liens of the fee interest constituting such Mortgaged Property to grant Security Documents and (y) sell, free and clear of the Lien contemplated by Liens of the Mortgage with respect to such Mortgaged Property;
(iii) with respect to each MortgageSecurity Documents, a policy of title insurance (any equipment or marked up title insurance commitment having the effect of a policy of title insurance) insuring the Lien of such Mortgage as a valid first mortgage Lien on the Mortgaged Property and fixtures described therein personal property included in the amount reasonably acceptable to the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company reasonably requested by the Collateral Agent, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (or where such endorsements are not available, other documentation reasonably acceptable to the Collateral Agent) as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, revolving credit, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Mortgaged Property, and such state or condition existed on the Closing Date (orwhich, in the case of a Mortgaged Property acquired after the Closing Date, on the date of the acquisition of such Mortgaged Property) and such state or condition does not materially and adversely affect the use or the value reasonable judgment of such Mortgaged Property for the business of the Company and its AffiliatesOwner, is obsolete.
(d) The Borrower will not, nor will the Borrower shall have no obligation to procure such endorsement permit any of its Subsidiaries to, enter into, or other documentationotherwise be or become obligated with respect to, and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the Collateral Agent;
(iv) or amend or modify, any Lease with respect to each any Mortgaged PropertyProperty if (i) the result of any such action is that the net effective rent (i.e., stated rent less the amount of rent abatements, landlord's work and other inducements provided by the landlord to the tenant thereunder) payable to the Mortgaged Property Owner under such affidavitsLease is less than the net effective rent (i.e., certificatesstated rent less the amount of rent abatements, information landlord's work and other inducements provided by the landlord to the tenant thereunder) then payable to the landlord under comparable space leases (including financial datasize, height, view and location within the building) and instruments of indemnification (including a so-called “gap” indemnification) as shall be required then being executed at other properties comparable to induce such Mortgaged Property in the Title Company to issue the title policy/ies and endorsements contemplated above;
(v) evidence reasonably acceptable to the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Mortgages and issuance of the title policies referred to above;
(vi) with respect to each Mortgaged Property, copies of all leases market in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Mortgaged Property, such leases shall (x) be subordinate to the Lien of the Mortgage to be recorded against such Mortgaged PropertyProperty is located with tenants of similar capitalization, either expressly by its terms or pursuant to a subordination, non-disturbance creditworthiness and attornment agreement in form and substance reasonably acceptable to the Collateral Agent, with respect to which the applicable Loan Party shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Collateral Agent, provided that, if the Collateral Agent fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been reasonably accepted by the Collateral Agent;
(vii) Surveys with respect to each Mortgaged Property; provided that, if the Borrower is able to obtain a “no change” affidavit acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Mortgaged Property, and issuing all survey related endorsements and coverages, then a new Survey shall not be requested;
(viii) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Mortgaged Property; and
(ix) an Opinion of Counsel relating to each Mortgaged Property described above, which Opinion of Counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agentbargaining power.
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