Mortgaged Property. In order to create in favor of Collateral Trustee, for the ratable benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case of the Mortgaged Property identified on Schedule 1.01(b), on or prior to the date that is ninety days after the Closing Date and (ii) in the case of any other Mortgaged Property 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property; (b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, 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, 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; (d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and (f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably request.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (MRC Global Inc.), Refinancing Amendment and Incremental Joinder Agreement (MRC Global Inc.)
Mortgaged Property. In order Mortgagor owns the net revenue interest and working interests as are specified in Exhibit A under the terms “Net Revenue Interest” and “Working Interest” attributable to create each well, unit or oil, gas and mineral lease described or referred to in favor of Collateral Trustee, for the ratable benefit Exhibit A hereto and comprising a part of the Secured PartiesMortgaged Property, free of any and all liens or other agreements, restrictions or limitations of any nature or kind (all such liens and other agreements, restrictions or limitations being herein collectively called the “Encumbrances”), except as specified on Exhibit A hereto and except for Permitted Liens (as defined in the Credit Agreement) (such permitted encumbrances and liens being herein collectively called the “Permitted Encumbrances”). With respect to the foregoing warranties and representations, it is acknowledged that Mortgagor’s intention is to mortgage and affect hereby the entirety of the interest that Mortgagor owns in all of the Mortgaged Property, whether now or hereafter, and as a valid andconsequence thereof, subject to if for any filing and/or recording referred to herein, perfected first priority security reason the interest of Mortgagor in any Mortgaged PropertyProperty in fact exceeds the Net Revenue Interest and/or the Working Interest, the Borrower and/or each as applicable Guarantor shall deliver to the Collateral Trustee (as specified in Exhibit A hereto), which Mortgagor represents and warrants herein that it owns, Mortgagor agrees that (i) such warranted Net Revenue Interest and Working Interest, as applicable (as specified in the case of the Mortgaged Property identified on Schedule 1.01(bExhibit A hereto), on or prior are intended to be the date that is ninety days after the Closing Date minimum undivided interests owned by and attributable to Mortgagor, and (ii) this Mortgage creates a valid lien and security interest in the case of any other Mortgaged Property 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability entirety of the Mortgages to be recorded in such state interest owned by and such other matters as Administrative Agent may reasonably request, 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, 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 attributable to such Mortgaged Property whether such interests are equal to or greater than the interests specified as Net Revenue Interests and copies of all recorded documents listed Working Interests (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;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestExhibit A hereto.
Appears in 2 contracts
Samples: Credit Agreement (Roan Resources, Inc.), Credit Agreement (Roan Resources, Inc.)
Mortgaged Property. In order to create in favor of Collateral TrusteeIf, for the ratable benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case of the Mortgaged Property identified on Schedule 1.01(b), on or prior to the date that is ninety days after the Closing Date and (ii) in the case of any other Mortgaged Property acquired by the Borrower or any Guarantor after the Closing Date, the Borrower or any of its Restricted Subsidiaries acquires in any one transaction or a series of related transactions real estate with either a fair market value or acquisition price of more than $2,000,000, and the Borrower or such Restricted Subsidiary, as the case may be, does not sell such real property pursuant to the terms and conditions set forth in (S)9.5.2(f) hereof or refinance the purchase price of such real property pursuant to the terms and conditions set forth in (S)9.1(o) hereof in either case within ninety 180 days following of acquiring such real property, the acquisition thereof:
(a) Borrower or such Restricted Subsidiary, as the case may be, shall forthwith deliver to the Agent, if the Agent so requests, a fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering mortgage or deed of trust over such Mortgaged Property;
(b) an opinion of counsel real estate (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state exclude fixtures, furniture and such other matters as Administrative Agent may reasonably requestequipment), in each case in form and substance reasonably satisfactory to Administrative the Agent;
(i) ALTA mortgagee , together with title insurance policies or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Administrative policies, surveys, evidences of insurance with the Agent named as loss payee and additional insured, legal opinions and other documents and certificates with respect to each such Mortgaged Property insuring real estate consistent with the Mortgages and related documents delivered hereunder. In addition, if, after the Closing Date, the Borrower or any of its Restricted Subsidiaries leases any real estate and, immediately after giving effect to such lease, a single landlord and/or its affiliates other than BKC owns twenty (20) or more pieces of real property leased to the Borrower or any of the Restricted Subsidiaries, the Borrower or such Restricted Subsidiary, as the case may be, shall use commercially reasonable efforts to obtain and deliver to the Agent, if the Agent so requests, a fully executed leasehold mortgage or leasehold deed of trust over all such real estate (which shall exclude fixtures, furniture and equipment) owned by such landlord and/or its affiliates, in form and substance satisfactory to the Agent, together with title insurance policies, surveys, evidences of insurance with the Agent named as loss payee and additional insured, legal opinions and other documents and certificates with respect to such real estate consistent with the Mortgages and related documents delivered hereunder. The Borrower further agrees that, following the taking of any such actions with respect to such real estate, the Agent shall have for the benefit of the Banks and the Agent a valid and subsisting Liens on the Mortgaged Property described thereinenforceable first priority mortgage or deed of trust over such real estate, free and clear of all Liens defects and encumbrances except for 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, 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;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestLiens.
Appears in 1 contract
Mortgaged Property. In order to create in favor of Collateral Trustee, for the ratable benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case of the Mortgaged Property identified on Schedule 1.01(b), on or prior to the date that is ninety Within 45 days after the Closing Date and (ii) in the case of any other Mortgaged Property acquired by the Borrower or any Guarantor after following the Closing Date, within ninety days following the acquisition thereof:105
(aA) fully executed evidence that counterparts of the Pre-Closing Mortgages have been duly recorded in all filing or recording offices that the Administrative Agents may deem necessary or desirable in order to create a valid first and notarized Mortgagessubsisting Lien, subject only to Permitted Encumbrances and Permitted Liens described therein, on the property described therein in favor of the Collateral Agent or the Collateral Trustees, as the case may be, for the benefit of the appropriate Secured Parties and that all filing and recording taxes, documentary stamp taxes, and similar taxes, charges and fees required to be paid in connection with the filing or recording of such Pre-Closing Mortgages have been paid,
(B) (1) deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust, in proper substantially the forms of Exhibit F-1 and Exhibit F-2 hereto (with such changes as may be required to account for local law matters) and otherwise in form for recording in all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably and substance satisfactory to the Administrative AgentAgents, and covering the properties listed on Part IIA-1 of each of Schedule 5.08(c) in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, Schedule 5.08(d) hereto (in each case as amended, the "Post-Closing Non-Shared Mortgages") and (2) deeds of trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds of trust, in substantially the form of Exhibit F-1 and Exhibit F-2 hereto (with such changes as may be required to account for local law matters) and otherwise in form and substance reasonably satisfactory to the Administrative Agent;Agents, and covering the properties listed on Part IIB-1 of each of Schedule 5.08(c) and Schedule 5.08(d) hereto (in each case as amended, the "Post-Closing Shared Mortgages", and together with the Post-Closing Non-Shared Mortgages, the "Post-Closing Mortgages"), duly executed by the appropriate Loan Party, together with evidence that counterparts of such Post-Closing Mortgages have been duly recorded in all filing or recording offices that the Administrative Agents may deem necessary or desirable in order to create a valid first and subsisting Lien on the property described therein in favor of the Collateral Agent or the Collateral Trustees, as the case may be, for the benefit of the appropriate Secured Parties and that all filing and recording taxes, documentary stamp taxes, and similar taxes, charges and fees required to be paid in connection with the filing or recording of such Post-Closing Mortgages have been paid, provided that if such Post-Closing Mortgages cannot be reasonably obtained within such forty-five (45) day period and the Borrower shall be thereafter diligently and continuously proceeding to obtain the same, such forty-five (45) day period shall be extended for a period of time during which the Borrower is diligently and continuously attempting to prosecute the same to completion, or until the Borrower, with the concurrence of the Administrative Agents (such concurrence not to be unreasonably withheld), determines that such Post-Closing Mortgages will not be forth coming notwithstanding its diligent efforts,
(iC) ALTA mortgagee title insurance policies or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Administrative Agent with respect to those properties indicated with a cross on Part IIA-2 and Part IIB-2 of each such of Schedule 5.08(c) and Schedule 5.08(d), Mortgage Policies (revised to give effect to the Survey received in connection with the applicable Mortgaged Property insuring Property, including the Mortgages as valid and subsisting Liens on elimination of the Mortgaged Property described therein, free and clear of all Liens except Permitted Liens (each, a “Title Policy”standard "survey" exception), in amounts not less than the fair market value same form and substance as the applicable pro-formas or hand-marked commitments relating to such Mortgage Policies delivered to, and approved and accepted by, the Administrative Agents on or prior to Closing, 106
(D) with respect to those properties indicated with an asterisk on Part IIA-2 and Part IIB-2 of each Mortgaged Property of Schedule 5.08(c) and with such endorsements as Schedule 5.08(d), Surveys (for which all necessary fees (where applicable) have been paid), certified to the Administrative Agent may requestAgents, the Collateral Trustees and the issuer of the Mortgage Policies by a land surveyor duly registered and licensed in the States in which the property described in such surveys is located,
(E) with respect to those properties indicated with a pound sign on Part I or Part IIA-1 of Schedule 5.08(c), (1) deeds, duly executed and delivered by the appropriate party-in-interest and legally sufficient to convey good title to such properties, together with a title report issued by a title company with respect theretoevidence that the same have been have been duly recorded in all applicable recording offices, dated not more than thirty days prior (2) Mortgages or amendments to the date on which a Mortgage is delivered with respect to such Mortgaged Property and copies of all recorded documents listed Mortgages, as exceptions to title or otherwise referred to thereinapplicable, each in form and substance reasonably satisfactory to the Administrative Agent Agents, duly executed and (ii) evidence satisfactory delivered by the appropriate Loan Party and legally sufficient to Administrative Agent that subject such Credit Party has paid properties to the title company or to the appropriate governmental authorities all expenses and premiums Liens of the title company applicable Mortgages, together with evidence that counterparts of such Mortgages or Mortgage amendments, as applicable, have been duly recorded in all applicable recording offices and that all other sums filing and recording taxes, documentary stamp taxes, and similar taxes, charges and fees required to be paid in connection with the issuance filing or recording of each Title Policy such Mortgages or Mortgage amendments have been paid, provided that if such deeds, and all recording consequently such Mortgage amendments, cannot be reasonably obtained within such forty-five (45) day period and stamp taxes the Borrower shall be thereafter diligently and continuously proceeding to obtain the same, such forty-five (including mortgage recording 45) day period shall be extended for a period of time during which the Borrower is diligently and intangible taxes) payable in connection continuously attempting to prosecute the same to completion, or until the Borrower, with recording the concurrence of the Administrative Agents (such concurrence not to be unreasonably withheld), determines that such deeds, and consequently such Mortgages for the applicable Mortgaged Property in the appropriate real estate records;
(d) no later than three or Mortgage amendments, will not be forth coming notwithstanding its diligent efforts and (3) Business Days prior a favorable opinion of appropriate local counsel to the date Loan Parties in substantially the same form as that set forth in Exhibit H-2,
(F) consent agreements, to the extent required in order to record any Post-Closing Mortgage and as otherwise required by the Administrative Agents in their sole discretion, in form and substance satisfactory to the Administrative Agents, executed by each of the lessors of the leased real properties listed on which Part IIA-1 and Part IIB-1 of each of Schedule 5.08(c) and Schedule 5.08(d) hereto, along with (x) a Mortgage is delivered memorandum of lease in recordable form with respect to a Mortgaged Propertysuch leasehold interest, in order to comply with executed and acknowledged by the Flood Lawsowner of the affected real property, as lessor, or (y) evidence that the following documents (collectively, the “Flood Documents”) applicable lease with respect to each Mortgaged Propertysuch leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agents' reasonable judgment, to give constructive notice to third-party purchasers of such leasehold interest, or (z) if such leasehold interest was acquired or subleased from the holder of a recorded leasehold interest, the applicable assignment or sublease document, executed and acknowledged by such holder, in each case in form sufficient to give such constructive notice upon recordation and substance reasonably otherwise in form satisfactory to the Administrative Agent: (A) a completed standard “life of loan” flood hazard determination form (a “Flood Determination Form”)Agents, (B) provided that if the property is a Flood Hazard Propertysuch consent agreements, a notification memoranda or other required documentation required pursuant to the 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 this subsection (D) if cannot be reasonably obtained within such forty-five (45) day period and the Borrower Notice shall be thereafter diligently and continuously proceeding to 107 obtain the same, such forty-five (45) day period shall be extended for a period of time during which the Borrower is diligently and continuously attempting to prosecute the same to completion, or until the Borrower, with the concurrence of the Administrative Agents (such concurrence not to be unreasonably withheld), determines that such consent agreements, memoranda or other required documentation will not be forth coming notwithstanding its diligent efforts,
(G) evidence in the form of updated title searches, title reports or "abstractor" certificates, "title" certificates or so-called "nothing further" certificates, as applicable, sufficient in the Administrative Agents' discretion to determine whether each Loan Party and each of its Subsidiaries required to be given execute and flood insurance is available deliver a Post-Closing Mortgage pursuant to this Section 6.18 has good title 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 issuedfee simple to, or such valid leasehold interests in, all real property to be mortgaged (other evidence than the properties comprised of flood insurance satisfactory to Administrative Agent (any "pipelines" or "gathering systems") described on Part IIA-1 and Part IIB-1 of the foregoing being “Evidence each of Flood Insurance”Schedule 5.08(c) and Schedule 5.08(d);
(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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Dynegy Inc /Il/)
Mortgaged Property. In order The Administrative Agent shall have received (i) a Mortgage with respect to create each Mortgaged Property listed on Schedule 6.3(g) to the Third Amendment, executed and delivered by a duly authorized officer of Atlantic Broadband (SC), LLC, together with such certificates, affidavits, questionnaires, instruments or returns as shall be reasonably required in favor of Collateral Trustee, for the ratable benefit of the Secured Parties, connection with filing or recordation thereof and to grant a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgage Lien on such Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case of the Mortgaged Property identified on Schedule 1.01(b), on or prior to the date that is ninety days after the Closing Date and (ii) in the case such UCC-1 Financing Statements and other similar statements as are contemplated by such Mortgage, (iii) policies or certificates of any other Mortgaged Property acquired insurance as reasonably required by the Mortgage relating thereto, which policies or certificates shall comply with the insurance requirements contained in subsection 7.5, (iv) evidence reasonably acceptable to the Administrative Agent of payment by Borrower of all mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgage, (v) a Lender’s title policy with respect to each such Mortgage paid for by a Credit Party, issued by Title Company, together with such endorsements (including, without limitation, “tie-in” or any Guarantor after the Closing Date“cluster”, within ninety days following the acquisition thereof:
first loss, last dollar, usury, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, zoning (a) fully executed and notarized Mortgagesprovided that with respect to zoning, Borrower may, in proper form for recording in all lieu of such endorsement, deliver a zoning compliance letter prepared by the appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be Governmental Authority or a zoning and site requirement summary report prepared by the Planning and Zoning Resource Corporation or other similar service reasonably satisfactory acceptable to the Administrative Agent) in and so-called comprehensive coverage over covenants and restrictions), coinsurance and reinsurance as may be reasonably requested by the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably requestand provided that such endorsements are available in a given jurisdiction, in each case in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(i) ALTA mortgagee title insurance policies or unconditional commitments therefor issued , insuring the Mortgage as a first Lien on the relevant Mortgaged Property and subject only to Permitted Encumbrances and such other Liens expressly agreed to by one or more title companies reasonably satisfactory to the 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”), (vi) such consents, approvals, estoppels, tenant subordination agreements or other instruments as shall be necessary or appropriate in amounts not less than the fair market value reasonable judgment of each Mortgaged Property and with such endorsements as the Administrative Agent may request, together with a title report issued in order for the owner or holder of the Fee Property or Leased Property constituting such Mortgaged Property to grant the Lien contemplated 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 (iivii) 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;
(d) no later than three (3) Business Days prior to the date on which a Mortgage is delivered Survey with respect to a such Mortgaged Property, in order to comply with the Flood Laws, the following documents (collectively, the “Flood Documents”) with respect to each Mortgaged Property, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably request.
Appears in 1 contract
Mortgaged Property. In order Except in each case as set forth on Schedule 6.10, with respect to create in favor each Mortgage, each Loan Party and each of Collateral Trusteetheir respective Subsidiaries, for as applicable, is the ratable benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case lawful owner of the Mortgaged Property identified on Schedule 1.01(b)described therein and has good right and authority to grant, on or prior to bargain, sell, transfer, assign and mortgage the date that is ninety days after the Closing Date and (ii) in the case of any other Mortgaged Property 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, 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, 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;
(d) 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”) same; with respect to each Mortgaged PropertyProperty described in Exhibit A to each Mortgage, its interests in each case such Mortgaged Property is no less than that Net Revenue Interest and no greater than the Working Interest set forth in form Exhibit A to such Mortgage for such Mortgaged Property; all oil, gas and/or mineral lease and substance reasonably satisfactory leasehold estates, gas purchase and sales contracts, pipeline easements and rights-of-way, processing contracts, franchises, licenses and other agreements comprising or relating to Administrative Agent: such Mortgaged Property or any portion thereof are valid and subsisting and are in full force and effect and, except as described on Schedule 6.18, no default now exists under such estates, contracts, easements, rights-of-way, franchises, licenses or other agreements and none of Borrower, any other Loan Party or their respective Subsidiaries has (Aa) a completed standard “life received any notice of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the property is a Flood Hazard Property, a notification to the Borrower (“Borrower Notice”) default or claimed default thereunder and (if applicableb) notification any knowledge of any event or circumstance which with notice or passage of time or both could constitute a default thereunder; such leases are subject to the Borrower that flood insurance coverage under the NFIP is not available because the applicable community does not participate no overriding royalties or other burdens or charges, except as reflected herein or in the NFIPExhibit A to such Mortgage and, (C) documentation evidencing except as described on Schedule 6.18, all material rents, royalties and other payments due and payable by any Loan Party or any of their respective Subsidiaries, as applicable, under such Mortgaged Property have been properly and timely paid and all ad valorem, property, oil and gas production, excise and severance taxes payable by any Loan Party or any of their respective Subsidiaries, as applicable, have been duly paid; such Mortgaged Property is free and clear from all Liens except the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery)Permitted Liens, and (D) if Borrower Notice is required to be given and flood insurance is available except as shown in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application Exhibit A 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 Mortgage; 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted producing xxxxx located on such Mortgaged Property or properties unitized therewith have been legally drilled in all material respects and (ii) an affidavit executed are not deviated in any material respect from the vertical more than the maximum permitted by a Senior Officer of the Borrower confirming that there has been no significant change since the date of applicable laws, rules and regulations, and such survey xxxxx are in respect of the matters covered thereinfact bottomed under and are producing from lands and, so long as such survey and affidavit are reasonably acceptable to the Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documentsif applicable, instruments and certificates, depths described in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestsaid Exhibit A or lands unitized therewith.
Appears in 1 contract
Mortgaged Property. In order to create in favor of Collateral Trustee, for Within 90 days after the ratable benefit Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent of the Secured PartiesAdministrative Agent (such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement, the Junior Lien Credit Agreement or the ABL Credit Agreement, or (y) such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) an amendment or an amendment and restatement thereof (each, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the case mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Property identified on Schedule 1.01(bProperties (other than the Mortgaged Properties in Texas), on or prior to the date that is ninety days after the Closing Date and (iib) for the Mortgaged Properties located in the case of any other Mortgaged Property acquired by the Borrower or any Guarantor after the Closing DateTexas, within ninety days following the acquisition thereof:
a nothing further certificate, in all cases (a) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in ), reflecting that there are no encumbrances affecting the state in which such Mortgaged Property is located with respect to Properties except as permitted under the enforceability of the Mortgages to be recorded in such state Credit Agreement, and such other matters as Administrative Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent;
, (iiii) ALTA mortgagee title insurance policies a favorable opinion of local or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to each such Mortgaged Property insuring the Mortgages enforceability of the mortgage as valid and subsisting Liens on the Mortgaged Property described thereinamended, 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 together with such endorsements other opinions as the Administrative Agent may requestshall require, 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;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent (it being understood and enables agreed that the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably requestacceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicable.
Appears in 1 contract
Samples: First Incremental Facility Amendment (Forterra, Inc.)
Mortgaged Property. In order to create in favor of Collateral TrusteeBorrower shall not Transfer, for the ratable benefit of the Secured Partiesor cause or permit a Transfer of, a valid and, subject to all or any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case part of the Mortgaged Property identified (including any interest in the Mortgaged Property) other than: a Transfer to which Lender has consented in writing; Leases permitted pursuant to the Loan Documents; [reserved]; a Transfer of obsolete or worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with reviewing Borrower’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 11.2(yyyy) of this Loan Agreement; or the conveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, Key Principal, or Guarantor. Other than a Transfer to which Lender has consented in writing, Borrower shall not Transfer, or cause or permit to be Transferred: any direct or indirect ownership interest in Borrower, Key Principal, or Guarantor (if applicable) if such Transfer would cause a change in Control; a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor (if applicable); fifty percent (50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower that existed on Schedule 1.01(bthe Effective Date (individually or on an aggregate basis); or the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, on Key Principal, or Guarantor (if applicable) separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement. Notwithstanding the foregoing, if a Publicly-Held Corporation or a Publicly-Held Trust Controls Borrower, Key Principal, or Guarantor, or owns a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor, a Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Borrower provides written notice to Lender not later than thirty (30) days thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the ownership interests in such Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Transfers of direct or indirect limited partnership or non-managing member interests in Borrower that result in a Transfer of fifty percent (50%) or more of the limited partnership or non-managing membership interests shall be consented to by Lender if such Transfer satisfies the following conditions: Key Principal or Guarantor (as applicable) Controls Borrower with the same rights and abilities as Key Principal or Guarantor (as applicable) Controls Borrower immediately prior to the date of such Transfer; such Transfer does not violate the requirements of Section 11.2(zzzz)(10)(J); Borrower shall provide Lender not less than thirty (30) days prior written notice of the proposed Transfer and obtain Lender’s approval; Borrower shall provide with its notice to Lender an organizational chart reflecting, and all organizational documents relevant to, the proposed Transfer; Borrower shall provide with its notice to Lender a certification that is ninety days after no change of Control of Borrower, Key Principal, or Guarantor (as applicable) shall occur as a result of such Transfer; the Closing Date and transferee shall not be, as of the date of the Transfer, a Prohibited Person if, as a result of the Transfer, the transferee will own twenty-five percent (ii25%) or more of the direct or indirect ownership interests in Borrower (and, if any other investor will own twenty-five percent (25%) or more of the case direct or indirect ownership interests in Borrower that did not own twenty-five percent (25%) or more before the Transfer, such investor shall not, as of the date of the Transfer, be a Prohibited Person); Borrower shall pay to Lender: concurrently with its notice to Lender, the Review Fee plus a transfer fee of $25,000, which shall be in lieu of any other Mortgaged Property acquired Transfer Fee; and upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, 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, 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 Lender in connection with its review of the issuance of each Title Policy Transfer request; 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;
(d) no later than three (3) Business Days prior to the date on which a Mortgage is delivered with respect to a Mortgaged Property, Borrower shall execute upon demand such documents or certifications as Lender reasonably requires in order to comply confirm the post-transfer ownership structure, compliance with the Flood Laws, the following documents (collectively, the “Flood Documents”) with respect to each Mortgaged Property, in each case in form and substance reasonably 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 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)stated conditions, 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 any 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestrelevant factual matter.
Appears in 1 contract
Samples: Loan and Security Agreement
Mortgaged Property. In order With respect to create in favor each Mortgage, each Loan Party and each of Collateral Trusteetheir respective Subsidiaries, for as applicable, is the ratable benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case lawful owner of the Mortgaged Property identified on Schedule 1.01(b)described therein and has good right and authority to grant, on or prior to bargain, sell, transfer, assign and mortgage the date that is ninety days after the Closing Date and (ii) in the case of any other Mortgaged Property 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, 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, 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;
(d) 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”) same; with respect to each Mortgaged PropertyProperty described in Exhibit A to each Mortgage, its interests in each case such Mortgaged Property is no less than that Net Revenue Interest and no greater than the Working Interest set forth in form Exhibit A to such Mortgage for such Mortgaged Property; all oil, gas and/or mineral lease and substance reasonably satisfactory leasehold estates, gas purchase and sales contracts, pipeline easements and rights-of-way, processing contracts, franchises, licenses and other agreements comprising or relating to Administrative Agent: such Mortgaged Property or any portion thereof are valid and subsisting and are in full force and effect and, except as described on Schedule 6.18, no default now exists under such estates, contracts, easements, rights-of-way, franchises, licenses or other agreements and none of Borrower, any other Loan Party or their respective Subsidiaries has (Aa) a completed standard “life received any notice of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the property is a Flood Hazard Property, a notification to the Borrower (“Borrower Notice”) default or claimed default thereunder and (if applicableb) notification any knowledge of any event or circumstance which with notice or passage of time or both could constitute a default thereunder; such leases are subject to the Borrower that flood insurance coverage under the NFIP is not available because the applicable community does not participate no overriding royalties or other burdens or charges, except as reflected herein or in the NFIPExhibit A to such Mortgage and ,except as described on Schedule 6.18, (C) documentation evidencing all material rents, royalties and other payments due and payable by any Loan Party or any of their respective Subsidiaries, as applicable, under such Mortgaged Property have been properly and timely paid and all ad valorem, property, oil and gas production, excise and severance taxes payable by any Loan Party or any of their respective Subsidiaries, as applicable, have been duly paid; such Mortgaged Property is free and clear from all Liens except the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery)Permitted Liens, and (D) if Borrower Notice is required to be given and flood insurance is available except as shown in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application Exhibit A 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 Mortgage; 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted producing xxxxx located on such Mortgaged Property or properties unitized therewith have been legally drilled in all material respects and (ii) an affidavit executed are not deviated in any material respect from the vertical more than the maximum permitted by a Senior Officer of the Borrower confirming that there has been no significant change since the date of applicable laws, rules and regulations, and such survey xxxxx are in respect of the matters covered thereinfact bottomed under and are producing from lands and, so long as such survey and affidavit are reasonably acceptable to the Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documentsif applicable, instruments and certificates, depths described in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestsaid Exhibit A or lands unitized therewith.
Appears in 1 contract
Mortgaged Property. In order Article VII Please refer to create the Appendix “List of Mortgaged Property” for details of the mortgaged property under this Contract.
Article VIII The value of the mortgaged property recorded in favor the “List of Collateral TrusteeMortgaged Property” or otherwise agreed upon by both parties (hereinafter referred to as “provisional value”) in this Contract, whether recorded in the register book of the registration authority or not, does not indicate the final value of the mortgaged property. Its final value shall be subject to the net amount of the proceeds from actual disposal of the mortgaged property at the realization of mortgage after deducting various taxes and fees. If the mortgaged property is used to offset creditor’s rights of the Mortgagee, the above provisional value shall not be used as the basis for the ratable benefit mortgaged property to offset the creditor’s rights of the Secured PartiesMortgagee. Meanwhile, the value of the mortgaged property shall be determined by both parties through negotiation or fair evaluation according to law. For any registered mortgaged property, if the mortgage term exceeds two years, the assessment company shall conduct a pre-assessment each year and provide simplified appraisal report (unless a formal evaluation report is made in the current year). In addition, a valid and, formal assessment shall be conducted every three years and a formal assessment report shall be provided. The qualification of the assessment company shall be subject to any filing and/or recording referred to hereinapproval by the Mortgagee.
Article IX If the mortgaged property is renewed with a new certificate (certification) of ownership or other rights, perfected first priority security interest resulting in any inconsistency between the “List of Mortgaged Property” or other rights (mortgage rights) certificates or mortgage rights certification documents received by the Mortgagee and the above-mentioned new certificate (certification) of rights or relevant records in the register book of the registration authority, the Borrower and/or each applicable Guarantor Mortgagor shall deliver not refuse to assume the guarantee responsibility on this ground.
Article X The effect of the mortgage right under this Contract extends to the Collateral Trustee (i) in insurance premium from the case collateral’s subordinate, subordinate rights, subrogation, separation, attachment, mixture, processed materials and collateral as well as the other properties and rights stipulated by laws and regulations. The Mortgagor shall complete necessary formalities like mortgage as required by the Mortgagee.
Article XI If the value of the Mortgaged Property identified on Schedule 1.01(b)mortgaged property has decreased or may decrease, on or prior affecting the realization of the creditor’s right of the Mortgagee, the Mortgagor shall provide a new guarantee as required by the Mortgagee.
Article XII All valid certificates and information of and related to the date that is ninety days after mortgaged property shall be sealed upon confirmation by both the Closing Date Mortgagor and (ii) in the case of any other Mortgaged Property acquired Mortgagee, and then handed over 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect Mortgagor to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, 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, 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 Mortgagee for the applicable Mortgaged Property in the appropriate real estate records;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestsafekeeping.
Appears in 1 contract
Mortgaged Property. Article 7 The mortgaged property hereunder is detailed in the attached “List of Mortgaged Property” (hereinafter: “List of Mortgaged Property”). The “List of Mortgaged Property” is attached as an annex to this Contract and has the same legal effect as this Contract.
Article 8 The value of the mortgaged asset recorded in the “List of Mortgaged Property” hereof or otherwise agreed upon by both parties (hereinafter referred to as the “provisional value”), regardless of whether it is recorded in the register book of the registration authority or not, does not indicate the final value of the mortgaged asset, which is subject to the net amount after deduction of taxes and fees from the actual disposal of the mortgaged asset upon the realization of the mortgaged right. In order the event that the mortgaged property is used to create offset the creditor’s rights of the Mortgagee, the above provisional value shall not serve as a basis for offsetting the mortgaged property against the creditor’s rights of the Mortgagee, and the value of the mortgaged property shall then be determined by the consensus of the Mortgagor and the Mortgagee, or by a fair appraisal in favor accordance with the law. In respect of Collateral Trusteemortgaged property for which a mortgage has been registered, if the mortgage term exceeds two years, a pre-appraisal by an appraisal company with a simplified appraisal report is carried out once a year (except for the ratable benefit year in which a formal appraisal report is issued); in addition, a formal appraisal shall be conducted every three years with a formal assessment report. The qualification of the Secured Parties, a valid and, assessment company shall be subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Propertyapproval by the Mortgagee. During the term of this Contract, the Borrower and/or each applicable Guarantor Mortgagor shall deliver be obliged to take remedial measures approved by the Collateral Trustee (i) in Mortgagee to realize or restore the case said value of the Mortgaged Property identified on Schedule 1.01(b)Assets, on or prior to the date that is ninety days after the Closing Date and (ii) in the case of any other Mortgaged Property 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability regardless of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, 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 reasons for the Mortgages as valid and subsisting Liens on reduction of the value of 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, 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 Assets.
Article 9 In case 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;
(d) 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, in each case in form and substance reasonably satisfactory to Administrative Agent: (A) a completed standard “life new certificate of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the property is a Flood Hazard Property, a notification to the 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, ownership 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) an affidavit executed by a Senior Officer of the Borrower confirming that there has been no significant change since the date of such survey rights in respect of the matters covered thereinmortgaged property leads to inconsistency between the “List of Mortgaged Property” hereof or the real estate registration certificate or mortgage rights certification document received by the Mortgagee and the relevant entries in the aforesaid new certificate of ownership or register book of the registration authority, so long as such survey and affidavit are reasonably acceptable the Mortgagor shall not refuse to assume the Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestguarantee liability on this ground.
Appears in 1 contract
Samples: Mortgage Agreement (UTime LTD)
Mortgaged Property. In order Upon any payment by the Owner Trustee pursuant to create in favor the first or second preceding paragraphs of Collateral Trusteethis Section 4.03, for the ratable benefit Owner Trustee shall be subrogated to the rights of the Secured PartiesMortgagee and the Note Holders in respect of the Basic Rent which was overdue at the time of such payment and interest payable by the Lessee on account of its being overdue and any Supplemental Rent in respect of the reimbursement of amounts paid by Owner Trustee pursuant to the immediately preceding paragraph (but in either case shall have no rights as a secured party hereunder), a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Propertyand thereafter, the Borrower and/or each applicable Guarantor Owner Trustee shall deliver be entitled (so long as the application thereof shall not give rise to an Event of Default hereunder) to receive such overdue Basic Rent or Supplemental Rent, as the Collateral Trustee case may be, and interest thereon upon receipt thereof by the Mortgagee; PROVIDED, HOWEVER, that (i) if the Original Amount and interest on the Equipment Notes shall have become due and payable pursuant to Section 4.04(b) hereof, such subrogation shall, until the Secured Obligations shall have been paid in full, be subordinate to the case rights of the Mortgaged Property identified on Schedule 1.01(b)Mortgagee, on or prior to the date that is ninety days after Note Holders and the Closing Date Indenture Indemnitees in respect of such payment of overdue Basic Rent, Supplemental Rent and such interest and (ii) the Owner Trustee shall not otherwise attempt to recover any such amount paid by it on behalf of the Lessee pursuant to this Section 4.03 except by demanding of the Lessee payment of such amount, or by commencing an action at law against the Lessee and obtaining and enforcing a judgment against the Lessee for the payment of such amount or taking appropriate action in a pending action at law against the case Lessee (PROVIDED, that at no time while an Event of Default shall have occurred and be continuing shall any other Mortgaged Property acquired such demand be made or shall any such action be commenced (or continued) and any amounts nevertheless received by the Borrower or any Guarantor after the Closing Date, within ninety days following the acquisition thereof:
(a) fully executed and notarized Mortgages, Owner Trustee in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel respect thereof shall be reasonably satisfactory to Administrative Agent) held in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, 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, 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 trust for the applicable Mortgaged Property in the appropriate real estate records;
(d) no later than three (3) Business Days prior to the date on which a Mortgage is delivered with respect to a Mortgaged Propertybenefit of, in order to comply with the Flood Lawsand promptly paid to, the following documents (collectively, Mortgagee for distribution as provided in Section 3.03 hereof). Neither the “Flood Documents”) with respect Owner Trustee nor the Owner Participant shall have the right to each Mortgaged Property, cure any Lease Event of Default or Lease Default except as specified in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestthis Section 4.03.
Appears in 1 contract
Samples: Trust Indenture and Mortgage (Continental Airlines Inc /De/)
Mortgaged Property. In order to create in favor of Collateral Trustee, for the ratable benefit of the Secured PartiesA Mortgage, a valid andloan policy of title insurance, subject to any filing and/or recording referred to hereinsurvey, perfected first priority security interest and other documentation in any Mortgaged respect of each Base Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case of the Mortgaged Property identified on Schedule 1.01(b), on or prior to the date that is ninety days after the Closing Date and (ii) in the case of any other Mortgaged Property acquired by the Borrower or any Guarantor after the Closing Date, within ninety days following the acquisition thereofas more fully described below:
(a) fully executed In respect of each real property location which is a Base Property as of the date of execution and notarized Mortgagesdelivery of this Credit Agreement, Borrower and the Management Company shall duly execute and cause to be filed for record in proper form for recording the real property records of the county in all which the affected real property encumbered thereby is located, a Mortgage (or deed of trust), an assignment of rents and such Uniform Commercial Code financing statements as shall be necessary or appropriate places to create and/or perfect a first lien in all applicable jurisdictions, encumbering such Mortgaged Property;favor of Bank in the real and personal property described therein.
(b) Borrower shall accompany the Mortgage and other documents described in subsection (a) above with (i) an opinion original loan policy of counsel (which counsel shall be title insurance issued by a title insurance company reasonably satisfactory to Administrative AgentBank insuring, in amounts and on other terms as Bank reasonably may require, that each such Mortgage is a valid first lien upon the real property encumbered thereby, eliminating any standard exception for survey and mechanics' liens and 11 otherwise subject only to such exceptions or matters affecting title as Bank may approve in writing; and (ii) in a current as-built survey, certified to Bank and the state in which such Mortgaged Property is located with respect title insurance company prepared by a registered surveyor acceptable to the enforceability title insurance company, depicting all improvements (including proposed improvements for which site approval has been issued), building lines, easements, streets, access ways to public streets and rights of the Mortgages to be recorded way and encroachments, and otherwise in such state detail as shall be necessary to eliminate any and such other matters as Administrative Agent may reasonably request, all "survey exceptions" from the title insurance policy described in each case in form and substance reasonably satisfactory to Administrative Agent;
(i) ALTA mortgagee title insurance policies or unconditional commitments therefor issued above.
(c) Borrower shall deliver to Bank Phase I environmental site assessment report with wetlands certification prepared by one or more title companies reasonably satisfactory an environmental consultant acceptable to Administrative Agent with respect Bank and certified to each such Mortgaged Property insuring Bank as a co-client, respecting the Mortgages as valid and subsisting Liens on the Mortgaged Property described therein, free and clear of all Liens except Permitted Liens Base Property.
(each, d) Borrower shall deliver to Bank a “Title Policy”), in amounts not less than real estate appraisal establishing the fair market value of each Mortgaged Property and with such endorsements as the Administrative Agent may requestBase Property, together with prepared by an appraiser who is 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 Member of the title company and all other sums required in connection with the issuance Institute of each Title Policy and all recording and stamp taxes Real Estate Appraisers (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages for the applicable Mortgaged Property in the appropriate real estate records;
(d) no later than three (3) Business Days prior to the date on which or has 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 corresponding professional designation acceptable to the Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestBank).
Appears in 1 contract
Samples: Credit Agreement (First Union Real Estate Equity & Mortgage Investments)
Mortgaged Property. In order to create in favor of Collateral TrusteeIf, for the ratable benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case of the Mortgaged Property identified on Schedule 1.01(b), on or prior to the date that is ninety days after the Closing Date and (ii) in the case of any other Mortgaged Property acquired by the Borrower or any Guarantor after the Closing Date, the Borrower or any --------- -------- of its Restricted Subsidiaries acquires in any one transaction or a series of related transactions real estate with either a fair market value or acquisition price of more than $1,000,000, and the Borrower or such Restricted Subsidiary, as the case may be, does not sell such real property pursuant to the terms and conditions set forth in (S)9.5.2(f) hereof or refinance the purchase price of such real property pursuant to the terms and conditions set forth in (S)9.1(o) hereof in either case within ninety 180 days following of acquiring such real property, the acquisition thereof:
(a) Borrower or such Restricted Subsidiary, as the case may be, shall forthwith deliver to the Agent, if the Agent so requests, a fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering mortgage or deed of trust over such Mortgaged Property;
(b) an opinion of counsel real estate (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state exclude fixtures, furniture and such other matters as Administrative Agent may reasonably requestequipment), in each case in form and substance reasonably satisfactory to Administrative the Agent;
(i) ALTA mortgagee , together with title insurance policies or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Administrative policies, Surveys, Surveyor Certificates, evidences of insurance with the Agent named as loss payee and additional insured, legal opinions and other documents and certificates with respect to each such Mortgaged Property insuring real estate consistent with the Mortgages and related documents delivered hereunder. In addition, if, after the Closing Date, the Borrower or any of its Restricted Subsidiaries leases any real estate and, immediately after giving effect to such lease, a single landlord and/or its affiliates other than BKC owns twenty (20) or more pieces of real property leased to the Borrower or any of the Restricted Subsidiaries, the Borrower or such Restricted Subsidiary, as the case may be, shall use commercially reasonable efforts to obtain and deliver to the Agent, if the Agent so requests, a fully executed leasehold mortgage or leasehold deed of trust over all such real estate (which shall exclude fixtures, furniture and equipment) owned by such landlord and/or its affiliates, in form and substance satisfactory to the Agent, together with title insurance policies, Surveys, Surveyor Certificates, evidences of insurance with the Agent named as loss payee and additional insured, legal opinions and other documents and certificates with respect to such real estate consistent with the Mortgages and related documents delivered hereunder. The Borrower further agrees that, following the taking of any such actions with respect to such real estate, the Agent shall have for the benefit of the Banks and the Agent a valid and subsisting Liens on the Mortgaged Property described thereinenforceable first priority mortgage or deed of trust over such real estate, free and clear of all Liens defects and encumbrances except for 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, 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;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestLiens.
Appears in 1 contract
Mortgaged Property. In order to create A Transfer as described in favor of Collateral Trustee, for the ratable benefit clause (b) of the Secured Parties, a valid and, subject to definition of Transfer of all or any filing and/or recording referred to herein, perfected first priority security part of any Mortgaged Property (including any interest in any Mortgaged Property) shall not occur other than:
(A) a Transfer to which Lender has consented in writing;
(B) the grant of a Residential Lease for a term of not less than one (1) month and not more than two (2) years, and not containing an option to purchase or right of first refusal (except as required by Applicable Law);
(C) Leases permitted pursuant to the Loan Documents, including the Seniors Housing Facility Lease between Borrower and Property Operator and the subordination thereof to the terms, provisions, and lien of this Master Agreement, the Borrower and/or each applicable Guarantor shall deliver Security Instrument, and the other Loan Documents;
(D) the grant of a non-Material Commercial Lease provided the use and type of operation of such space is not materially altered from the use and type of operation in effect as of the Effective Date and the number and size of residential units at any Mortgaged Property are not reduced or the grant of a non-Material Commercial Lease entered into pursuant to a unit conversion permitted pursuant to the Collateral Trustee last paragraph of Section 6.02(a) or Section 6.02(f);
(E) a Transfer of obsolete or worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than liens securing indebtedness permitted under clause (i) in the case of the Mortgaged Property identified on Schedule 1.01(b), on or prior to the date that is ninety days after the Closing Date definition of Permitted Indebtedness and (ii) in the case of any other Mortgaged Property acquired liens created 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged PropertyLoan Documents);
(bF) the grant of an opinion easement, servitude, or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with reviewing Borrower’s request;
(G) a lien permitted pursuant to Section 11.02 (Liens, Transfers, and Assumptions – Covenants) of counsel this Master Agreement; or
(which counsel H) the conveyance of any Mortgaged Property following a Foreclosure Event. Lender shall be reasonably satisfactory not unreasonably withhold its consent to Administrative Agentor withhold its agreement to subordinate the lien of the applicable Security Instrument to (1) in the state in which grant of a utility easement serving such Mortgaged Property to a publicly operated utility, or (2) the grant of an easement related to expansion or widening of roadways, provided that any such easement is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, in each case in form and substance reasonably satisfactory acceptable to Administrative Agent;
(i) ALTA mortgagee title insurance policies Lender and does not materially and adversely affect the lien of the Security Instrument or unconditional commitments therefor issued by one the access, use or more title companies reasonably satisfactory to Administrative Agent with respect to each marketability of 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, 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;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably request.
Appears in 1 contract
Samples: Master Credit Facility Agreement (Brookdale Senior Living Inc.)
Mortgaged Property. In order to create in favor of Collateral Trustee, for Within 90 days after the ratable benefit Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent of the Secured PartiesAdministrative Agent (such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) an amendment or an amendment and restatement thereof (each, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the case mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Property identified on Schedule 1.01(bProperties (other than the Mortgaged Properties in Texas), on or prior to the date that is ninety days after the Closing Date and (iib) for the Mortgaged Properties located in the case of any other Mortgaged Property acquired by the Borrower or any Guarantor after the Closing DateTexas, within ninety days following the acquisition thereof:
a nothing further certificate, in all cases (a) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in ), reflecting that there are no encumbrances affecting the state in which such Mortgaged Property is located with respect to Properties except as permitted under the enforceability of the Mortgages to be recorded in such state Credit Agreement, and such other matters as Administrative Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent;
, (iiii) ALTA mortgagee title insurance policies a favorable opinion of local or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to each such Mortgaged Property insuring the Mortgages enforceability of the mortgage as valid and subsisting Liens on the Mortgaged Property described thereinamended, 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 together with such endorsements other opinions as the Administrative Agent may requestshall require, 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;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent (it being understood and enables agreed that the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably requestacceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicable.
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Samples: Second Incremental Facility Amendment (Forterra, Inc.)
Mortgaged Property. In order to create in favor of Collateral TrusteeBorrower shall not Transfer, for the ratable benefit of the Secured Partiesor cause or permit a Transfer of, a valid and, subject to all or any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case part of the Mortgaged Property identified (including any interest in the Mortgaged Property) other than: a Transfer to which Lender has consented in writing; Leases permitted pursuant to the Loan Documents; [reserved]; a Transfer of obsolete or worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with reviewing Borrower’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 11.2(aaaaa) of this Loan Agreement; or the conveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, Key Principal, or Guarantor. Other than a Transfer to which Lender has consented in writing, Borrower shall not Transfer, or cause or permit to be Transferred: any direct or indirect ownership interest in Borrower, Key Principal, or Guarantor (if applicable) if such Transfer would cause a change in Control; a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor (if applicable); fifty percent (50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower that existed on Schedule 1.01(bthe Effective Date (individually or on an aggregate basis); the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, Key Principal, or Guarantor (if applicable) separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement; or a Transfer to a new key principal or new guarantor (if such new key principal or guarantor is an entity), on which entity has an organizational existence termination date that ends before the Maturity Date. Notwithstanding the foregoing, if a Publicly-Held Corporation or a Publicly-Held Trust Controls Borrower, Key Principal, or Guarantor, or owns a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor, a Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Borrower provides written notice to Lender not later than thirty (30) days thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the ownership interests in such Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Transfers of direct or indirect limited partnership or non-managing member interests in Borrower that result in a Transfer of fifty percent (50%) or more of the limited partnership or non-managing membership interests shall be consented to by Lender if such Transfer satisfies the following conditions: Key Principal or Guarantor (as applicable) Controls Borrower with the same rights and abilities as Key Principal or Guarantor (as applicable) Controls Borrower immediately prior to the date that is ninety days after of such Transfer; such Transfer satisfies the Closing Date and (ii) in the case requirements of any other Mortgaged Property acquired by the Section 11.2(bbbbb)(9)(J); 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, 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 provide Lender not less than the fair market value of each Mortgaged Property and with such endorsements as the Administrative Agent may request, together with a title report issued by a title company with respect thereto, dated not more than thirty (30) days prior written notice of the proposed Transfer and obtain Lender’s approval; Borrower shall provide with its notice to Lender an organizational chart reflecting, and all organizational documents relevant to, the proposed Transfer; Borrower shall provide with its notice to Lender a certification that no change of Control of Borrower or Key Principal shall occur as a result of such Transfer; the transferee shall not be, as of 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 Transfer, a Prohibited Person if, as a result of the Transfer, the transferee will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower (or, if any other investor will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower that did not own twenty-five percent (25%) or more before the Transfer, such investor shall not, as of the date of the Transfer, be a Prohibited Person); Borrower shall pay to Lender: concurrently with its notice to Lender, the Review Fee plus a Transfer Fee of $25,000; and all other sums required upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred by Lender in connection with its review of the issuance of each Title Policy Transfer request; 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;
(d) no later than three (3) Business Days prior to the date on which a Mortgage is delivered with respect to a Mortgaged Property, Borrower shall execute upon demand such documents or certifications as Lender reasonably requires in order to comply confirm the post-transfer ownership structure, compliance with the Flood Laws, the following documents (collectively, the “Flood Documents”) with respect to each Mortgaged Property, in each case in form and substance reasonably 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 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)stated conditions, 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 any 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestrelevant factual matter.
Appears in 1 contract
Mortgaged Property. In order As soon as practicable, but in any event within 90 days, following the acquisition by the Issuers or any Guarantor of any fee or leasehold interest in any parcel of real property, together with all easements, hereditaments and appurtenances relating thereto and fixtures located thereon, to create in favor the extent that such fee or leasehold interest has a fair market value as determined by the Issuers of at least $100,000, the Issuers or such Guarantor shall grant to the Collateral TrusteeAgent, for the ratable benefit of the Secured PartiesTrustee and the holders of the Notes, a valid and, subject to any filing and/or recording referred to herein, perfected first priority lien on and security interest in (on a shared basis with any Additional Secured Obligations permitted to be incurred under Section 4.06(b)(1) to the extent such Additional Secured Obligations share in the liens created by the Security Agreement and the Canadian Security Agreement) all right title and interest in such Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee ; provided that (i) in the case of Issuers and the Mortgaged Property identified Guarantors will only be required to use commercially reasonable efforts to grant such a Lien on Schedule 1.01(b), on or prior leasehold interests to the date that extent landlord consent is ninety days after the Closing Date required to grant such Lien and (ii) the Company shall not be required to xxxxx x Xxxx on its headquarters in Reston, Virginia and operating facilities in Ottawa, Canada. The Company shall deliver the case following in respect of any other each such Mortgaged Property acquired by the Borrower or any Guarantor after the Closing Date, within ninety days following the acquisition thereofProperty:
(ai) fully a Mortgage encumbering each Mortgaged Property for the benefit of the Collateral Agent, for the benefit of the Trustee and the Noteholders and holders of such Additional Secured Obligations, duly executed and notarized Mortgagesacknowledged by the owner of or holder of any interest in such Mortgaged Property, and otherwise in proper form appropriate for recording in all appropriate places in all the recording office of each applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which political subdivision where each such Mortgaged Property is located situated, together with respect such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to the enforceability create a lien under applicable requirements of the Mortgages to be recorded in such state law, and such financing statements and any other matters as Administrative Agent may reasonably requestinstruments necessary to xxxxx x xxxx under the laws of any applicable jurisdiction, in each case all of which shall be in form and substance reasonably satisfactory to Administrative the Collateral Agent;
(iii) 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 Mortgaged Property, the Issuers or Guarantors shall use commercially reasonable efforts to obtain such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as the Collateral Agent shall reasonably deem necessary in order for the owner or holder of the fee or leasehold 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 committing to issue a policy of title insurance) insuring the Mortgages Lien of such Mortgage as a valid and subsisting Liens first Lien on the Mortgaged Property and fixtures described thereintherein in the amount equal to not less than 100% of the fair market value of such Mortgaged Property and fixtures which fair market value shall be at least in an amount equal to the purchase price of such Mortgaged Property or if such Mortgaged Property was not purchased and such purchase price cannot be determined by the Company, free the fair market value thereof as reasonably determined in good faith by the Board of Directors and clear of all Liens except Permitted Liens set forth in an Officer’s Certificate delivered to the Trustee, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by the Title Company, (B) to the extent necessary, 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 regard-less of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements where available as shall be reasonably requested by the Collateral Agent (including endorsements on matters relating to usury, first loss, last dollar, zoning (to the extent customarily obtained in amounts not less than the fair market value of each jurisdiction where the Mortgaged Property is located for substantially similar property and with such endorsements as the Administrative Agent may requestavailable at commercially reasonable rates), together with a title report issued by a title company with respect theretocontiguity, dated not more than thirty days prior to the date on which a Mortgage is delivered with respect to such Mortgaged Property doing business, public road access, survey, environmental lien, subdivision, mortgage recording tax, separate tax lot, and copies of all recorded documents listed as so-called comprehensive coverage over covenants and restrictions), and (E) contain no exceptions to title or otherwise referred other than exceptions acceptable to therein, each in form and substance reasonably satisfactory to Administrative the Collateral Agent and (ii) evidence satisfactory to Administrative Agent those exceptions that such Credit Party has paid to the title company cannot be removed by Issuers 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 recordsGuarantors using commercially reasonable efforts;
(d) 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”iv) with respect to each Mortgaged Property, in the Issuers or Guarantors shall use commercially reasonable efforts to obtain such affidavits, certificates, information (including financial data) and instruments of indemnification (including a so-called “gap” indemnification) provided by seller or lessor 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 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 case in form and substance reasonably 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 Mortgaged Property, a notification to the 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 copies 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 all Leases in which any the property is locatedCompany, a copy of one of Finance Co. or any Guarantor holds the following: lessor’s interest or other agreements relating to possessory interests, if any. To 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 (extent any of the foregoing being “Evidence affect any Mortgaged Property, Issuers or Guarantors shall use commercially reasonable efforts to cause such agreement to be subordinate to the Lien of Flood Insurance”)the Mortgage to be recorded against such Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement;
(evii) 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 any each Mortgaged Property, the Company, Finance Co. or the applicable Guarantor shall have made all notifications, registrations and filings, to the extent required by, and in accordance with, all Governmental Real Property Disclosure Requirements applicable to such Mortgaged Property;
(viii) Surveys with respect to each Mortgaged Property if the Borrower delivers owned in fee;
(ix) completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such each Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverageProperty; and
(fx) appraisals favorable written opinions of local counsel in the states or other applicable political subdivisions in which each such Mortgaged Property is located.
(xi) a policy or certificate of insurance as required by each Mortgage and other documents, instruments and certificates, in each case in form and substance satisfactory this Indenture relating to Administrative Agent that the Administrative Agent shall reasonably requestsuch Mortgaged Property.
Appears in 1 contract
Mortgaged Property. In order to create in favor of Collateral TrusteeBorrower shall not Transfer, for the ratable benefit of the Secured Partiesor cause or permit a Transfer of, a valid and, subject to all or any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case part of the Mortgaged Property identified (including any interest in the Mortgaged Property) other than: a Transfer to which Lender has consented in writing; Leases permitted pursuant to the Loan Documents, including the Seniors Housing Facility Lease between Borrower and Master Lessee and the subordination thereof to the terms, provisions, and lien of this Loan Agreement, the Security Instrument, and the other Loan Documents; [reserved]; a Transfer of obsolete or worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with reviewing Borrower’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 11.2(nnnnn) of this Loan Agreement; or the conveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, Key Principal, Guarantor, or Affiliated Property Operator. Other than a Transfer to which Lender has consented in writing, Borrower shall not Transfer, or cause or permit to be Transferred: any direct or indirect ownership interest in Borrower, Key Principal, Guarantor, or Affiliated Property Operator if such Transfer would cause a change in Control; a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, Guarantor, or Affiliated Property Operator; fifty percent (50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower or Affiliated Property Operator (if applicable) that existed on Schedule 1.01(bthe Effective Date (individually or on an aggregate basis); the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, Key Principal, Guarantor or Affiliated Property Operator (if applicable) separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement; or a Transfer to a new key principal or new guarantor (if such new key principal or guarantor is an entity), on which entity has an organizational existence termination date that ends before the Maturity Date. Notwithstanding the foregoing, if a Publicly-Held Corporation or a Publicly-Held Trust Controls Borrower, Key Principal, Guarantor, or Affiliated Property Operator, or owns a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, Guarantor, or Affiliated Property Operator, a Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Borrower provides written notice to Lender not later than thirty (30) days thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the ownership interests in such Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Transfers of direct or indirect limited partnership or non-managing member interests in Borrower or Affiliated Property Operator that result in a Transfer of fifty percent (50%) or more of the limited partnership or non-managing membership interests shall be consented to by Lender if such Transfer satisfies the following conditions: Key Principal or Guarantor (as applicable) Controls Borrower or Affiliated Property Operator, as applicable, with the same rights and abilities as Key Principal or Guarantor (as applicable) Controls Borrower or Affiliated Property Operator, as applicable, immediately prior to the date that is ninety days after of such Transfer; such Transfer satisfies the Closing Date and (ii) in the case requirements of any other Mortgaged Property acquired by the Section 11.2(ooooo)(12)(J); 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, 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 provide Lender not less than the fair market value of each Mortgaged Property and with such endorsements as the Administrative Agent may request, together with a title report issued by a title company with respect thereto, dated not more than thirty (30) days prior written notice of the proposed Transfer and obtain Lender’s approval; Borrower shall provide with its notice to Lender an organizational chart reflecting, and all organizational documents relevant to, the proposed Transfer; Borrower shall provide with its notice to Lender a certification that no change of Control of Borrower, Affiliated Property Operator, or Key Principal shall occur as a result of such Transfer; the transferee shall not be, as of 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 Transfer, a Prohibited Person if, as a result of the Transfer, the transferee will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower (or, if any other investor will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower that did not own twenty-five percent (25%) or more before the Transfer, such investor shall not, as of the date of the Transfer, be a Prohibited Person); Borrower shall pay to Lender: concurrently with its notice to Lender, the Review Fee plus a Transfer Fee of $25,000; and all other sums required upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred by Lender in connection with its review of the issuance of each Title Policy Transfer request; and all recording Borrower and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages for the applicable Mortgaged Affiliated Property in the appropriate real estate records;
(d) no later than three (3) Business Days prior to the date on which a Mortgage is delivered with respect to a Mortgaged Property, Operator shall execute upon demand such documents or certifications as Lender reasonably requires in order to comply confirm the post-transfer ownership structure, compliance with the Flood Laws, the following documents (collectively, the “Flood Documents”) with respect to each Mortgaged Property, in each case in form and substance reasonably 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 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)stated conditions, 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 any 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestrelevant factual matter.
Appears in 1 contract
Mortgaged Property. In order The Borrower shall promptly notify the Lender upon the occurrence of any loss or claim, and, except with respect to create amounts less than $10,000, at the Lender's option in favor of Collateral Trusteeeach instance, for the ratable benefit Lender, to the exclusion of the Secured PartiesBorrower, a valid and, subject shall have the right and authority to file any filing and/or recording referred proofs of claim and negotiate any adjustment or settlement thereof. Each insurance company is hereby directed and authorized to herein, perfected first priority security interest in any Mortgaged Property, remit all payments (including the Borrower and/or each applicable Guarantor shall deliver return of unearned premiums) directly to the Collateral Trustee (i) in the case of the Mortgaged Property identified on Schedule 1.01(b), on or prior Lender alone and not to the date that is ninety days after the Closing Date and (ii) in the case of any other Mortgaged Property acquired by the Borrower or any Guarantor after the Closing Date, within ninety days following the acquisition thereof:
(a) fully executed Borrower and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel Lender jointly. All insurance policies shall be reasonably satisfactory subject to Administrative Agent) Lender's reasonable review and approval; shall be written by insurers which are rated at least "A" by Best's Key Rating Guide, authorized to conduct business in the state in which such the Mortgaged Property is located with respect located, and otherwise acceptable to Lender; shall be first payable in case of loss to the enforceability Lender under the standard mortgagee clause, so-called, or its equivalent, provided, that the personal property and liability insurance policies shall designate the Lender as an additional insured; shall contain an agreed amount or waiver of co-insurance endorsement; shall be issued on a replacement cost basis; shall require at least thirty (30) days written notice to the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, in each case in form and substance reasonably Lender before cancellation or material coverage reductions; shall include deductible amounts satisfactory to Administrative Agent;
the Lender; and shall contain a so-called lender's loss payable endorsement. The original of all such policies of insurance (i) ALTA mortgagee title insurance policies or unconditional commitments therefor certificates thereof issued by one or more title companies reasonably the insurer in form, content and manner of execution 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, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior Lender) shall be delivered to the date on which a Mortgage is delivered with respect to such Mortgaged Property Lender, 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 the Borrower shall deliver to the title company Lender a new policy (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 such a certificate) as replacement for an expiring policy (including mortgage recording and intangible taxesor such a certificate) payable in connection with recording the Mortgages for the applicable Mortgaged Property in the appropriate real estate records;
(d) 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, in each case in form and substance reasonably 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 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 deposited hereunder together with proof of one payment 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 premiums therefor annually at least thirty (any of the foregoing being “Evidence of Flood Insurance”);
(e30) 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) an affidavit executed by a Senior Officer of the Borrower confirming that there has been no significant change since days before the date of such survey in respect expiration. The acceptance by the Lender of any insurance policies or certificates it may receive from the Borrower or the Borrower's insurance agent shall not be deemed or construed as an approval by the Lender of the form, sufficiency, or amount of such insurance. The Borrower hereby irrevocably appoints the Lender its true and lawful attorney-in-fact, with full power of substitution, upon an Event of Default, to deal with the insurer with respect to all matters covered thereinarising under the policy, so long as such survey and affidavit are reasonably acceptable to the Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory the event the Lender forecloses upon the Mortgaged Property to Administrative Agent that assign any policy to any subsequent owner of the Administrative Agent shall reasonably requestMortgaged Property.
Appears in 1 contract
Samples: Loan Agreement (Enclaves Group Inc)
Mortgaged Property. In order to create A Transfer as described in favor of Collateral Trustee, for the ratable benefit clause (b) of the Secured Parties, a valid and, subject to definition of Transfer of all or any filing and/or recording referred to herein, perfected first priority security part of any Mortgaged Property (including any interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor ) shall deliver not occur other than:
(A) a Transfer to which Lender has consented in writing;
(B) Leases permitted pursuant to the Collateral Trustee Loan Documents;
(iC) [reserved];
(D) a Transfer of obsolete or worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents);
(E) the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with reviewing Borrower’s request, including reasonable attorneys’ fees and the case of Review Fee; provided, however, that Borrower shall be permitted to grant an easement over the Mortgaged Property identified on Schedule 1.01(b), on to a publicly operated or prior to the date private franchise utility provided that is ninety days after the Closing Date and (ii) in the case of any other Mortgaged Property 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability each of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, in each case in form and substance reasonably satisfactory to Administrative Agent;following conditions is satisfied:
(i) ALTA mortgagee title insurance policies Borrower provides Lender with at least thirty (30) days prior written notice of the proposed easement;
(ii) no Event of Default has occurred and is continuing, and no Potential Event of Default has occurred and is continuing;
(iii) prior to the grant, Lender determines (1) that the easement will not materially affect the operation, marketability, or unconditional commitments therefor issued by one value of the Mortgaged Property; the health or more title companies reasonably satisfactory safety of tenants or visitors; Lender’s interest in the Mortgaged Property; or Borrower’s access to Administrative Agent with respect to each such Mortgaged Property insuring the Mortgages as valid and subsisting Liens on the Mortgaged Property described thereinor the use of any easements or amenities which benefit the Mortgaged Property, free and clear (2) that the easement will not result in the loss of the use of any residential or commercial units;
(iv) the proposed easement and all Liens except Permitted Liens (each, a “Title Policy”), in amounts not less than rights of the fair market value of each Mortgaged Property and with such endorsements as the Administrative Agent may request, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior grantee thereunder are expressly subordinate to the date on which a Mortgage is delivered with respect to such Mortgaged Property and copies lien 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 the applicable Security Instrument;
(iiv) evidence satisfactory to Administrative Agent that such Credit Party Borrower has paid to the title company or Lender all costs and expenses incurred by Lender in connection with reviewing Borrower’s request;
(vi) at Borrower’s expense, Borrower delivers an endorsement to the appropriate governmental authorities all expenses and premiums Lender’s Title Policy evidencing the recordation of the easement and an update to the Survey, if applicable, to reflect the easement if plottable; and
(vii) Lender has reviewed and approved the documents evidencing the proposed easement, and Borrower delivers to Lender recorded copies of the easement and signed copies of any unrecorded documents within ten (10) days following the granting of the easement. Any consideration paid to Borrower under this Section 11.02(b)(1)(E) shall be distributed as follows:
(AA) first, to payment of all of Lender’s out of pocket expenses, including but not limited to attorneys’ fees, as well as recording and title company costs;
(BB) second, to restoration or repair of the remainder of the Mortgaged Property, if applicable;
(CC) third, an amount not to exceed $250 per individual dwelling unit (after deducting Borrower’s cost and all other sums required expense incurred 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;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) an affidavit executed by a Senior Officer of the Borrower confirming that there has been no significant change since the date granting of such survey in respect of the matters covered therein, so long as such survey and affidavit are reasonably acceptable easement) to the Administrative Agent and enables the applicable title company to provide full survey coverageBorrower for its own account; and
(fDD) appraisals and other documentsfourth, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that any remaining funds will be deposited into the Administrative Agent shall reasonably request.Replacement Reserve;
Appears in 1 contract
Samples: Master Credit Facility Agreement (Steadfast Apartment REIT, Inc.)
Mortgaged Property. In order to create in favor of Collateral Trustee, for the ratable benefit of the Secured Parties, a valid and, Any Real Estate which is subject to any filing and/or recording Mortgage, ------------------ including any Real Estate acquired by the Borrower or a Subsidiary after the Closing Date which shall become subject to a Mortgage upon acquisition. Mortgages. Collectively, (a) the several mortgages and deeds of trust, --------- dated as of May 18, 1994, as amended, and as further amended by the Mortgage Amendments pertaining to such Mortgage, from the Borrower and its Subsidiaries to the Agent with respect to the fee and leasehold interests of the Borrower and its Subsidiaries in the Real Estate referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver Exhibit L-1 hereto and in ------- --- form and substance satisfactory to the Collateral Trustee Banks and the Agent, (b) each of (i) the Mortgage dated as of September 6, 1994, as amended, and as further amended by the Mortgage Amendments, pertaining to such Mortgage on the fee interest of the Borrower in the case Real Estate located in Ocala, Florida; and (ii) the Mortgage dated as of January 5, 1996, as amended, and as further amended by the Mortgage Amendments, pertaining to such Mortgage on the fee interest of the Mortgaged Property identified Borrower in the Real Estate located in Medford, Oregon; (c) the Mortgage dated as of January 30, 1997, as amended by the Mortgage Amendments, pertaining to such Mortgage on Schedule 1.01(b)the fee interest of the Borrower in the Real Estate located in Franklin, Kentucky; (d) the several mortgages and deeds of trust, dated or to be dated on or prior to the date that is ninety days Closing Date, from the Borrower and its Subsidiaries in the Real Estate referred to in Exhibit L-2 hereto and in form and substance satisfactory ----------- to the Banks and the Agent, and (e) such additional mortgages and deeds of trust as may be dated after the Closing Date from the Borrower and its Subsidiaries with respect to fee and leasehold interests in Real Estate acquired after the Closing Date which the Borrower or such Subsidiary is required to mortgage pursuant to (iiS)9.13. Multiemployer Plan. Any multiemployer plan within the meaning of (S)3(37) in the case ------------------ of any other Mortgaged Property acquired ERISA maintained or contributed to 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, 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, 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;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestERISA Affiliate.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Petro Stopping Centers L P)
Mortgaged Property. In order to create in favor of Collateral Trustee, for the ratable benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable IDOT Guarantor shall deliver to the Collateral Trustee (i) in the case not Transfer, or cause or permit a Transfer of, all or any part of the Mortgaged Property identified (including any interest in the Mortgaged Property) other than: a Transfer to which Lender has consented in writing; Leases permitted pursuant to the Loan Documents; [reserved]; a Transfer of obsolete or worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and IDOT Guarantor has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with reviewing IDOT Guarantor’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 11.2(aaaaa) of this Loan Agreement; or the conveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, IDOT Guarantor, Key Principal, or Guarantor. Other than a Transfer to which Lender has consented in writing, no Obligor shall Transfer, or cause or permit to be Transferred: any direct or indirect ownership interest in Borrower, IDOT Guarantor, Key Principal, or Guarantor (if applicable) if such Transfer would cause a change in Control; a direct or indirect Restricted Ownership Interest in Borrower, IDOT Guarantor, Key Principal, or Guarantor (if applicable); fifty percent (50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower or IDOT Guarantor that existed on Schedule 1.01(bthe Effective Date (individually or on an aggregate basis); the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, IDOT Guarantor, Key Principal, or Guarantor (if applicable) separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement; or a Transfer to a new key principal or new guarantor (if such new key principal or guarantor is an entity), on which entity has an organizational existence termination date that ends before the Maturity Date. Notwithstanding the foregoing, if a Publicly-Held Corporation or a Publicly-Held Trust Controls Borrower, IDOT Guarantor, Key Principal, or Guarantor, or owns a direct or indirect Restricted Ownership Interest in Borrower, IDOT Guarantor, Key Principal, or Guarantor, a Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Borrower provides written notice to Lender not later than thirty (30) days thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the ownership interests in such Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Transfers of direct or indirect limited partnership or non-managing member interests in Obligor that result in a Transfer of fifty percent (50%) or more of the limited partnership or non-managing membership interests shall be consented to by Lender if such Transfer satisfies the following conditions: Key Principal or Guarantor (as applicable) Controls Obligor with the same rights and abilities as Key Principal or Guarantor (as applicable) Controls Obligor immediately prior to the date of such Transfer; such Transfer satisfies the requirements of Section 11.2(bbbbb)(9)(J); Obligor shall provide Lender not less than thirty (30) days prior written notice of the proposed Transfer and obtain Lender’s approval; Obligor shall provide with its notice to Lender an organizational chart reflecting, and all organizational documents relevant to, the proposed Transfer; Obligor shall provide with its notice to Lender a certification that no change of Control of Obligor or Key Principal shall occur as a result of such Transfer; the transferee shall not be, as of the date of the Transfer, a Prohibited Person if, as a result of the Transfer, the transferee will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Obligor (or, if any other investor will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Obligor that did not own twenty-five percent (25%) or more before the Transfer, such investor shall not, as of the date of the Transfer, be a Prohibited Person); Obligor shall pay to Lender: concurrently with its notice to Lender, the Review Fee plus a Transfer Fee of $25,000; and upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred by Lender in connection with its review of the Transfer request; and Obligor shall execute upon demand such documents or certifications as Lender reasonably requires in order to confirm the post-transfer ownership structure, compliance with the stated conditions, and any other relevant factual matter. Name Change or Entity Conversion. Lender shall consent to Obligor changing its name, changing its jurisdiction of organization, or converting from one type of legal entity into another type of legal entity for any lawful purpose, provided that: Lender receives written notice at least thirty (30) days prior to such change or conversion, which notice shall include organizational charts that reflect the structure of Obligor both prior to and subsequent to such name change or entity conversion; such Transfer is ninety days after not otherwise prohibited under the Closing Date provisions of Section 11.2(bbbbb)(9); Obligor executes an amendment to this Loan Agreement and (ii) any other Loan Documents required by Lender documenting the name change or entity conversion; Obligor agrees and acknowledges, at Obligor’s expense, that Obligor will execute and record in the case land records any instrument required by the Property Jurisdiction to be recorded to evidence such name change or entity conversion (or provide Lender with written confirmation from the title company (via electronic mail or letter) that no such instrument is required), Obligor will execute any additional documents required by Lender, including the amendment to this Loan Agreement, and allow such documents to be recorded or filed in the land records of the Property Jurisdiction, Lender will obtain a “date down” endorsement to the Lender’s Title Policy (or obtain a new Title Policy if a “date down” endorsement is not available in the Property Jurisdiction), evidencing title to the Mortgaged Property being in the name of the successor entity and the Lien of the Security Instrument against the Mortgaged Property, and Lender will file any required UCC-3 financing statement and make any other filing deemed necessary to maintain the priority of its Liens on the Mortgaged Property; and no later than ten (10) days subsequent to such name change or entity conversion, Obligor shall provide Lender the documentation filed with the appropriate office in Obligor’s state of formation evidencing such name change or entity conversion, copies of the organizational documents of Obligor, including any amendments, filed with the appropriate office in Obligor’s state of formation reflecting the post-conversion Obligor name, form of organization and structure, and if available, new certificates of good standing or valid formation for Obligor. No Delaware Statutory Trust or Series LLC Conversion. Notwithstanding any provisions herein to the contrary, no Obligor, Guarantor, or Key Principal shall convert to a Delaware Statutory Trust or a series limited liability company. No Other Indebtedness. Other than the Mortgage Loan, Obligor shall not incur or be obligated at any time with respect to any loan or other indebtedness (except trade payables as otherwise permitted in this Loan Agreement), including any indebtedness secured by a Lien on, or the cash flows from, the Mortgaged Property. No Mezzanine Financing or Preferred Equity. Neither Obligor nor any direct or indirect owner of Obligor shall: incur any Mezzanine Debt other than Permitted Mezzanine Debt; issue any Preferred Equity other than Permitted Preferred Equity; or incur any similar indebtedness or issue any similar equity. Mortgage Loan Administration Matters Regarding Liens, Transfers, and Assumptions. Assumption of Mortgage Loan. Lender shall consent to a Transfer of the Mortgaged Property to a new IDOT guarantor and an assumption of the Mortgage Loan by a new borrower if each of the following conditions is satisfied prior to the Transfer: Each Obligor has submitted to Lender all information required by Lender to make the determination required by this Section 11.3(eeeee); no Event of Default has occurred and is continuing, and no event which, with the giving of written notice or the passage of time, or both, would constitute an Event of Default has occurred and is continuing; Lender determines that: the proposed new borrower, new IDOT guarantor, new key principal, and any other new guarantor fully satisfy all of Lender’s then-applicable borrower, IDOT guarantor, key principal, or guarantor eligibility, credit, management, and other loan underwriting standards, which shall include an analysis of the previous relationships between Lender and the proposed new borrower, new IDOT guarantor, new key principal, new guarantor, and any Person in Control of them, and the organization of the new borrower, new IDOT guarantor, new key principal, and new guarantor (if applicable), and the operating and financial performance of the Mortgaged Property, including physical condition and occupancy; none of the proposed new borrower, new IDOT guarantor, new key principal, and any new guarantor, or any owners of the proposed new borrower, new key principal, and any new guarantor, are a Prohibited Person; and none of the proposed new borrower, new key principal, and any new guarantor (if any of such are entities) shall have an organizational existence termination date that ends before the Maturity Date; [reserved]; the proposed new borrower has: executed an assumption agreement acceptable to Lender that, among other things, requires the proposed new borrower to assume and perform all obligations of Borrower (or any other transferor), and that may require that the new borrower comply with any provisions of any other Mortgaged Property acquired Loan Document that previously may have been waived by the Lender for Borrower or any Guarantor after IDOT Guarantor, subject to the Closing Dateterms of Section 11.3(kkkkk); if required by Lender, within ninety days following delivered to the acquisition thereof:
(a) fully executed and notarized Mortgages, in proper form title company for filing and/or recording in all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion all applicable Loan Documents including the assumption agreement to correctly evidence the assumption and the confirmation, continuation, perfection, and priority of counsel (which counsel shall be reasonably satisfactory the Liens created hereunder and under the other Loan Documents; and delivered to Administrative Agent) in the state in which such Mortgaged Property is located with respect Lender a “date-down” endorsement to the enforceability of the Mortgages Title Policy acceptable to be recorded in such state and such other matters as Administrative Agent may reasonably request, in each case in form and substance reasonably satisfactory to Administrative Agent;
Lender (i) ALTA mortgagee or a new title insurance policies or unconditional commitments therefor issued by policy if a “date-down” endorsement is not available); one or more title companies reasonably satisfactory individuals or entities acceptable to Administrative Agent Lender as new IDOT guarantor or new guarantors have executed and delivered to Lender: an assumption agreement acceptable to Lender that requires the new IDOT guarantor or new guarantor to assume and perform all obligations of IDOT Guarantor or Guarantor, as applicable, under the IDOT Guaranty or any Guaranty given in connection with respect the Mortgage Loan; or a substitute Non-Recourse Guaranty and other substitute guaranty in a form acceptable to each such Mortgaged Property insuring Lender; Lender has reviewed and approved the Mortgages Transfer documents; and Lender has received the fees described in Section 11.3(kkkkk). Transfers to Key Principal-Owned Affiliates or Guarantor-Owned Affiliates. Except as valid otherwise covered in Section 11.3(fffff)(2) below, Transfers of direct or indirect ownership interests in Obligor to Key Principal or Guarantor, or to a transferee through which Key Principal or Guarantor (as applicable) Controls Obligor with the same rights and subsisting Liens on the Mortgaged Property described therein, free and clear of all Liens except Permitted Liens abilities as Key Principal or Guarantor (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, together with a title report issued by a title company with respect thereto, dated not more than thirty days applicable) Controls Obligor immediately prior to the date on which a Mortgage is delivered with respect of such Transfer, shall be consented to by Lender if 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 Transfer satisfies the applicable Mortgaged Property requirements of Section 11.3(eeeee), other than Section 11.3(eeeee)(5). Transfers of direct or indirect interests in any Obligor held by a Key Principal or Guarantor to other Key Principals or Guarantors, as applicable, shall be consented to by Lender if such Transfer satisfies the following conditions: the Transfer does not cause a change in the appropriate real estate records;
(d) no later than three (3) Business Days Control of such Obligor; and the transferor Key Principal or Guarantor maintains the same right and ability to Control such Obligor as existed prior to the date on which a Mortgage is delivered with respect to a Mortgaged Property, Transfer. If the conditions set forth in order to comply with the Flood Lawsthis Section 11.3(fffff) are satisfied, the following documents (collectively, the “Flood Documents”) with respect to each Mortgaged Property, in each case in form and substance reasonably 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 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 Transfer Fee shall be required to obtain a new ALTA survey with respect to any Mortgaged Property if waived provided such Obligor shall pay the Borrower delivers to the applicable title company Review Fee and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) an affidavit executed by a Senior Officer of the Borrower confirming that there has been no significant change since the date of such survey out-of-pocket costs set forth in respect of the matters covered therein, so long as such survey and affidavit are reasonably acceptable to the Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestSection 11.3(kkkkk).
Appears in 1 contract
Mortgaged Property. In order to create in favor of Collateral TrusteeBorrower shall not Transfer, for the ratable benefit of the Secured Partiesor cause or permit a Transfer of, a valid and, subject to all or any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case part of the Mortgaged Property identified (including any interest in the Mortgaged Property) other than: a Transfer to which Lender has consented in writing; Leases permitted pursuant to the Loan Documents, including the Master Lease between Borrower and Master Lessee and the subordination thereof to the terms, provisions, and lien of this Loan Agreement, the Security Instrument, and the other Loan Documents; [reserved]; a Transfer of obsolete or worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with reviewing Borrower’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 1.12(a) of this Loan Agreement; or the conveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, Master Lessee, Key Principal, or Guarantor. Other than a Transfer to which Lender has consented in writing, Borrower shall not Transfer, or cause or permit to be Transferred: any direct or indirect ownership interest in Borrower, Master Lessee, Key Principal, or Guarantor (if applicable) if such Transfer would cause a change in Control except that, in connection with any Springing Transaction, the Person holding a direct Restricted Ownership Interest in Borrower immediately prior to such Springing Transaction may receive, in place of its Restricted Ownership Interest in Borrower, a Restricted Ownership Interest of a corresponding nature in the Springing LLC; a direct or indirect Restricted Ownership Interest in Borrower, Master Lessee, Key Principal, or Guarantor (if applicable) except in connection with a Springing Transfer; fifty percent (50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower or Master Lessee that existed on Schedule 1.01(bthe Effective Date (individually or on an aggregate basis); any direct or indirect ownership interest in Borrower, Key Principal, or Guarantor (if applicable) if such transfer would result in a violation of Section 1.07(b); or the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, Master Lessee, Key Principal, or Guarantor (if applicable) separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement. Notwithstanding the foregoing, if a Publicly-Held Corporation or a Publicly-Held Trust Controls Borrower, Master Lessee, Key Principal, or Guarantor, or owns a direct or indirect Restricted Ownership Interest in Borrower, Master Lessee, Key Principal, or Guarantor, a Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Borrower provides written notice to Lender not later than thirty (30) days thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the ownership interests in such Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Subject to the restrictions on beneficial interest ownership transfers set forth in Section 1.13(h)(2), on Transfers of direct or indirect beneficial ownership, limited partnership or non-managing member interests in Borrower or Master Lessee that result in a Transfer of fifty percent (50%) or more of the beneficial ownership, limited partnership or non-managing membership interests shall be consented to by Lender if such Transfer satisfies the following conditions: Key Principal or Guarantor (as applicable) Controls Borrower or Master Lessee, as applicable, with the same rights and abilities as Key Principal or Guarantor (as applicable) Controls Borrower immediately prior to the date of such Transfer; such Transfer does not violate the requirements of Section 1.12(b)(2)(C) or Section 1.12(b)(2)(D); Borrower shall provide Lender not less than thirty (30) days prior written notice of the proposed Transfer and obtain Lender’s approval; Borrower shall provide with its notice to Lender an organizational chart reflecting, and all organizational documents relevant to, the proposed Transfer; Borrower shall provide with its notice to Lender a certification that is ninety days after no change of Control of Borrower, Master Lessee, Key Principal, or Guarantor (as applicable) shall occur as a result of such Transfer; if any Person will own twenty-five percent (25%) or more of the Closing Date and direct or indirect ownership interests in Borrower that did not own twenty-five percent (ii25%) or more before the Transfer, such Person shall not, as of the date of the Transfer, be a Prohibited Person; Borrower shall pay to Lender: concurrently with its notice to Lender, the Review Fee plus a transfer fee of $25,000, which shall be in the case lieu of any other Mortgaged Property acquired Transfer Fee; and upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, 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, 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 Lender in connection with its review of the issuance of each Title Policy Transfer request; and all recording Borrower 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;
(d) no later than three (3) Business Days prior to the date on which a Mortgage is delivered with respect to a Mortgaged Property, Master Lessee shall execute upon demand such documents or certifications as Lender reasonably requires in order to comply confirm the post-transfer ownership structure, compliance with the Flood Laws, the following documents (collectively, the “Flood Documents”) with respect to each Mortgaged Property, in each case in form and substance reasonably 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 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)stated conditions, 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 any 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestrelevant factual matter. [Intentionally Omitted].
Appears in 1 contract
Mortgaged Property. In order The Administrative Agent shall have received (i) a Mortgage with respect to create each Real Property acquired in favor connection with the Subsequent Consent Transfers and Subsequent Property Transfers (each as defined in the Asset Purchase Agreement) individually having a fair market value in excess of Collateral Trustee, for the ratable benefit $1,000,000 as of the Secured PartiesSecond Draw Date, executed and delivered by a valid andduly authorized officer of the appropriate Credit Party, subject together with such certificates, affidavits, questionnaires, instruments or returns as shall be reasonably required in connection with filing or recordation thereof and to any filing and/or recording referred to herein, grant a perfected first priority security interest in any Mortgage Lien on such Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case of the Mortgaged Property identified on Schedule 1.01(b), on or prior to the date that is ninety days after the Closing Date and (ii) in the case such UCC-1 Financing Statements and other similar statements as are contemplated by such Mortgage, (iii) policies or certificates of any other Mortgaged Property acquired insurance as reasonably required by the Borrower Mortgage relating thereto, which policies or any Guarantor after certificates shall comply with the Closing Dateinsurance requirements contained in subsection 7.5, within ninety days following the acquisition thereof:
(aiv) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be evidence reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect acceptable to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably requestof payment by Borrower of all mortgage recording taxes, in each case in form fees, charges, costs and substance reasonably satisfactory to Administrative Agent;
expenses required for the recording of such Mortgage, (iv) ALTA mortgagee title insurance policies or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Administrative Agent a Lender’s Title Policy with respect to each such Mortgaged Property insuring Mortgage, (vi) such consents, approvals, estoppels, tenant subordination agreements or other instruments as shall be necessary or appropriate in the Mortgages as valid and subsisting Liens on the Mortgaged Property described therein, free and clear reasonable judgment 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, together with a title report issued in order for the owner or holder of the Fee Property or Leased Property constituting such Mortgaged Property to grant the Lien contemplated 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 (iivii) 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;
(d) no later than three (3) Business Days prior to the date on which a Mortgage is delivered Survey with respect to a such Mortgaged Property, in order to comply with the Flood Laws, the following documents (collectively, the “Flood Documents”) with respect to each Mortgaged Property, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Atlantic Broadband Management, LLC)
Mortgaged Property. In order Receipt by the Collateral Agent of (i) fully executed counterparts of amended and restated Mortgages on the Real Properties identified on Schedule 6.01(f) (the "Mortgage Amendments") in form and substance reasonably satisfactory to create the Collateral Agent, which are necessary or, in the reasonable opinion of the Collateral Agent, desirable to effectively maintain a valid and enforceable first priority mortgage lien that secures the facilities provided for herein on each Mortgaged Property (subject only to Permitted Encumbrances) in favor of the Collateral Trustee, Agent (or such other trustee as may be required or desired under local law) for the ratable benefit of the Secured PartiesCreditors, (ii) copies of all existing ALTA surveys of each of the Mortgaged Properties by registered engineers or land surveyors in the possession of the Borrower, (iii) copies of all existing appraisals of the Mortgaged Properties, (iv) copies of existing environmental reports and other environmental documentation, if any, relating to the Mortgaged Properties in the possession of the Borrower, (v) evidence satisfactory to the Collateral Agent that counterparts of each Mortgage Amendment have been delivered to the title company insuring the mortgage liens for recording, (vi) either endorsements to the existing Mortgage Policies or new Mortgage Policies assuring the Collateral Agent that each Mortgage Amendment creates a valid and, subject to any filing and/or recording referred to herein, perfected and enforceable first priority security interest in any mortgage lien on the respective Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver free and clear of all defects, encumbrances (except for Permitted Encumbrances) and liens (except for Permitted Liens), (vii) evidence as to the Collateral Trustee (ix) in the case of the whether any Mortgaged Property identified on Schedule 1.01(b), on is in an area designated by the Federal Emergency Management Agency as having flood or prior to the date that is ninety days after the Closing Date mud slide hazards (a "Flood Hazard Property") and (iiy) in the case of if any other Mortgaged Property acquired by is a Flood Hazard Property, (1) whether 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state community in which such Mortgaged Property is located with respect is participating in the National Flood Insurance Program and (2) the applicable Credit Party's written acknowledgment of receipt of written notification from the Administrative Agent (a) as to the enforceability fact that such Mortgaged Property is a Flood Hazard Property and (b) as to whether the community in which each such Flood Hazard Property is located is participating in the National Flood Insurance Program and (viii) from local counsel satisfactory to the Collateral Agent, opinions each of which (x) shall be addressed to the Administrative Agent, the Collateral Agent and each of the Mortgages to Lenders, (y) shall be recorded in such state and such other matters as Administrative Agent may reasonably request, 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 the Administrative Agent with respect and (z) shall cover the perfection of security interests granted pursuant to each the Mortgage Amendments and such Mortgaged Property insuring other matters incident to 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 transactions contemplated herein as the Administrative Agent may request, 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;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably request.
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Mortgaged Property. In order to create in favor of Collateral TrusteeBorrower shall not Transfer, for the ratable benefit of the Secured Partiesor cause or permit a Transfer of, a valid and, subject to all or any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case part of the Mortgaged Property identified (including any interest in the Mortgaged Property) other than: a Transfer to which Lender has consented in writing; Leases permitted pursuant to the Loan Documents; [reserved]; a Transfer of obsolete or worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with reviewing Borrower’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 11.2(yyyy) of this Loan Agreement; or the conveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, Key Principal, or Guarantor. Other than a Transfer to which Lender has consented in writing, Borrower shall not Transfer, or cause or permit to be Transferred: any direct or indirect ownership interest in Borrower, Key Principal, or Guarantor (if applicable) if such Transfer would cause a change in Control; a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor (if applicable); fifty percent (50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower that existed on Schedule 1.01(bthe Effective Date (individually or on an aggregate basis); or the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, on Key Principal, or Guarantor (if applicable) separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement. Notwithstanding the foregoing, if a Publicly-Held Corporation or a Publicly-Held Trust Controls Borrower, Key Principal, or Guarantor, or owns a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor, a Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Borrower provides written notice to Lender not later than thirty (30) days thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the ownership interests in such Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Transfers of direct or indirect limited partnership or non-managing member interests in Borrower that result in a Transfer of fifty percent (50%) or more of the limited partnership or non-managing membership interests shall be consented to by Lender if such Transfer satisfies the following conditions: Key Principal or Guarantor (as applicable) Controls Borrower with the same rights and abilities as Key Principal or Guarantor (as applicable) Controls Borrower immediately prior to the date of such Transfer; such Transfer satisfies the requirements of Section 11.2(zzzz)(9)(J); Borrower shall provide Lender not less than thirty (30) days prior written notice of the proposed Transfer and obtain Lender’s approval; Borrower shall provide with its notice to Lender an organizational chart reflecting, and all organizational documents relevant to, the proposed Transfer; Borrower shall provide with its notice to Lender a certification that no change of Control of Borrower or Key Principal shall occur as a result of such Transfer; the transferee shall not be, as of the date of the Transfer, a Prohibited Person if, as a result of the Transfer, the transferee will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower (or, if any other investor will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower that did not own twenty-five percent (25%) or more before the Transfer, such investor shall not, as of the date of the Transfer, be a Prohibited Person); Borrower shall pay to Lender: concurrently with its notice to Lender, the Review Fee plus a Transfer Fee of $25,000; and upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred by Lender in connection with its review of the Transfer request; and Borrower shall execute upon demand such documents or certifications as Lender reasonably requires in order to confirm the post-transfer ownership structure, compliance with the stated conditions, and any other relevant factual matter. Name Change or Entity Conversion. Converting from one type of legal entity into another type of legal entity for any lawful purpose shall require Lender’s prior written consent. Lender shall consent to Borrower changing its name or changing its jurisdiction of organization provided that: Lender receives written notice at least thirty (30) days prior to such change or conversion, which notice shall include organizational charts that reflect the structure of Borrower both prior to and subsequent to such name change; such Transfer is ninety days after not otherwise prohibited under the Closing Date provisions of Section 11.2(zzzz)(9); Borrower executes an amendment to this Loan Agreement and (ii) any other Loan Documents required by Lender documenting the name change; Borrower agrees and acknowledges, at Borrower’s expense, that Borrower will execute and record in the case of land records any other Mortgaged Property acquired instrument required 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages Jurisdiction to be recorded to evidence such name change (or provide Lender with written confirmation from the title company (via electronic mail or letter) that no such instrument is required), Borrower will execute any additional documents required by Lender, including the amendment to this Loan Agreement, and allow such documents to be recorded or filed in such state and such other matters as Administrative Agent may reasonably requestthe land records of the Property Jurisdiction, Lender will obtain a “date down” endorsement to the Lender’s Title Policy (or obtain a new Title Policy if a “date down” endorsement is not available in each case in form and substance reasonably satisfactory the Property Jurisdiction), evidencing title 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 the Mortgaged Property insuring being in the Mortgages as valid name of the successor entity and subsisting the Lien of the Security Instrument against the Mortgaged Property, and Lender will file any required UCC-3 financing statement and make any other filing deemed necessary to maintain the priority of its Liens on the Mortgaged Property described therein, free Property; 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, 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;
(d) no later than three ten (310) Business Days prior days subsequent to such name change, Borrower shall provide Lender the documentation filed with the appropriate office in Borrower’s state of formation evidencing such name change, copies of the organizational documents of Borrower, including any amendments, filed with the appropriate office in Borrower’s state of formation reflecting the post-conversion Borrower name, form of organization, and structure, and if available, new certificates of good standing or valid formation for Borrower. No Delaware Statutory Trust or Series LLC Conversion. Notwithstanding any provisions herein to the date on which a Mortgage is delivered with respect contrary, no Borrower, Guarantor, or Key Principal shall convert 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, in each case in form and substance reasonably satisfactory to Administrative Agent: (A) Delaware Statutory Trust or 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestseries limited liability company.
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Mortgaged Property. In order With respect to create in favor of Collateral Trusteeeach Mortgage, for Borrower, each Designated Borrower and each other Subsidiary, as applicable, is the ratable benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case lawful owner of the Mortgaged Property identified on Schedule 1.01(b)described therein and has good right and authority to grant, on or prior to bargain, sell, transfer, assign and mortgage the date that is ninety days after the Closing Date and (ii) in the case of any other Mortgaged Property 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, 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, 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;
(d) 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”) same; with respect to each Mortgaged Property described on Exhibit A to each Mortgage, its interests in each such Mortgaged Property is no less than that Net Revenue Interest and no greater than the Working Interest set forth in Exhibit A to such Mortgage for such Mortgaged Property, all oil, gas and/or mineral lease and leasehold estates, gas purchase and sales contracts, pipeline easements and rights-of-way, processing contracts, franchises, licenses and other agreements comprising or relating to such Mortgaged Property or any portion thereof are valid and subsisting and are in each case full force and effect and, except as described in form Schedule 6.18, no default now exists under such estates, contracts, easements, rights-of-way, franchises, licenses or other agreements and substance reasonably satisfactory to Administrative Agent: none of Borrower, any Designated Borrower or their respective Subsidiaries has (Aa) a completed standard “life received any notice of loan” flood hazard determination form (a “Flood Determination Form”), (B) if the property is a Flood Hazard Property, a notification to the Borrower (“Borrower Notice”) default or claimed default thereunder and (if applicableb) notification any knowledge of any event or circumstance which with notice or passage of time or both could constitute a default thereunder; such leases are subject to the Borrower that flood insurance coverage under the NFIP is not available because the applicable community does not participate no overriding royalties or other burdens or charges, except as reflected herein or in the NFIPExhibit A to such Mortgage and, (C) documentation evidencing except as described in Schedule 6.18, all rents, royalties and other payments due and payable by Borrower, any Designated Borrower or any other Subsidiary, as applicable, under such Mortgaged Property have been properly and timely paid and all ad valorem, property, oil and gas production, excise and severance taxes payable by Borrower, any Designated Borrower or any other Subsidiary, as applicable, have been duly paid; such Mortgaged Property is free and clear from all Liens except the Borrower’s receipt of the Borrower Notice (e.g., countersigned Borrower Notice, return receipt of certified U.S. Mail, or overnight delivery)Permitted Liens, and (D) if Borrower Notice is required to be given and flood insurance is available except as shown in the community in which the property is located, a copy of one of the following: the flood insurance policy, the Borrower’s application Exhibit A 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 Mortgage; 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted producing xxxxx located on such Mortgaged Property or properties unitized therewith have been legally drilled and (ii) an affidavit executed are not deviated from the vertical more than the maximum permitted by a Senior Officer of the Borrower confirming that there has been no significant change since the date of applicable laws, rules and regulations, and such survey xxxxx are in respect of the matters covered thereinfact bottomed under and are producing from lands described in said Exhibit A or lands unitized therewith, so long as such survey and affidavit are reasonably acceptable to the Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, except in each case in form and substance satisfactory to Administrative Agent the extent that the Administrative Agent shall failure of such representation to be true could not reasonably requestbe expected to have a Material Adverse Effect.
Appears in 1 contract
Mortgaged Property. In order to create The Lender shall have received, in favor of Collateral Trustee, for the ratable benefit respect of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case a Mortgage, dated as of the Mortgaged Property identified on Schedule 1.01(b), on or prior to the date that is ninety days after the Closing Date and (ii) in the case of any other Mortgaged Property acquired by the Borrower or any Guarantor after the Closing Date, within ninety days following the acquisition thereof:
(a) fully and duly executed and notarized Mortgagesdelivered by an Authorized Officer of Borrower, which Mortgage shall be substantially in the form of Exhibit G hereto, and (i)a mortgagee’s title insurance policy or marked up unconditional binder for such insurance, effective as of the Closing Date, together with a current ALTA survey thereof and a surveyor’s certificate, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agentthe Lender, provided that such policy shall (A) be in an amount reasonably satisfactory to the state in which such Mortgaged Property is located Lender with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably request, 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 covered thereby but not less than the fair market value of each the Mortgaged Property and with such endorsements covered thereby; (B) insure that, as of the Administrative Agent may requestClosing Date, together with the Mortgage insured thereby creates a title report issued by a title company with respect thereto, dated not more than thirty days prior to the date valid first Lien on which a Mortgage is delivered with respect to such Mortgaged Property free and copies clear of all recorded documents listed defects and encumbrances, except as exceptions disclosed in the Mortgage or as permitted by Section 8.3; (C) name the Lender as the insured thereunder; (D) be in form reasonably satisfactory to the Lender; (E) contain such endorsements, coinsurance, reinsurance and affirmative coverage as the Lender may reasonably request; and (F) be issued by First American Title Insurance Company or such other national title company or otherwise referred companies reasonably satisfactory to thereinthe Lender (including any such title companies acting as co-insurers or reinsurers, each at the option of the Lender); (ii) evidence satisfactory to it that all premiums in respect of such policy, all charges for mortgage recording tax, and all related expenses, if any, have been paid or duly provided for; and (iii) legal opinions from local counsel in the jurisdiction where the Mortgaged Property is situated and from counsel in the jurisdiction where the owner of the Mortgaged Property is organized relating to the matters described above, which opinions shall be 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;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably requestLender.
Appears in 1 contract
Mortgaged Property. In order to create in favor of Collateral Trustee, for Within 90 days after the ratable benefit Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent of the Secured PartiesAdministrative Agent (such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in an amendment or an amendment and restatement thereof (each, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to the case of Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property identified on Schedule 1.01(b)and to further grant, on or prior to preserve, protect, confirm and perfect the date that is ninety days after the Closing Date lien and security interest thereby created and perfected; (ii) in the case of any other Mortgaged Property acquired by the Borrower or any Guarantor after the Closing Date, within ninety days following the acquisition thereof:)
(a) fully executed for all Mortgaged Properties other than those located in Texas, date down and notarized Mortgagesmodification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
and (b) an opinion of counsel for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (which counsel shall be reasonably satisfactory to Administrative Agenta) in and (b), reflecting that there are no encumbrances affecting the state in which such Mortgaged Property is located with respect to Properties except as permitted under the enforceability of the Mortgages to be recorded in such state Credit Agreement, and such other matters as Administrative Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent;
, (iiii) ALTA mortgagee title insurance policies a favorable opinion of local or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to each such Mortgaged Property insuring the Mortgages enforceability of the mortgage as valid and subsisting Liens on the Mortgaged Property described thereinamended, 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 together with such endorsements other opinions as the Administrative Agent may requestshall require, 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;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent (it being understood and enables agreed that the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably requestacceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicable.
Appears in 1 contract
Mortgaged Property. In The Company shall or shall cause the applicable Credit Party to deliver to the Administrative Agent within 60 days following the Amendment and Restatement Effective Date (or by such other date to which the Administrative Agent may agree in its sole discretion) the following with respect to the Mortgaged Property: either
(i) written or e-mail confirmation from local counsel in the jurisdiction in which the Mortgaged Property subject to a Mortgage is located substantially to the effect that: (A) the recording of the 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 this Agreement and the other documents executed in connection herewith, for the benefit of the Lenders, and (B) 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 create maintain the continued enforceability, validity or priority of the lien created by such Mortgaged Property as security for the Obligations, including the Obligations evidenced by this Agreement and the other documents executed in connection herewith, for the benefit of the Secured Creditors; and
(ii) a title commitment for the Mortgaged Property issued by the title company that issued the existing title insurance policy, which commitment shall reflect no exceptions to title other than Permitted Liens and Permitted Encumbrances; or
(i) an amendment to the existing Mortgage to reflect the matters set forth in this Agreement, duly executed and acknowledged by the applicable Loan Party, and in form for recording in the recording office where such Mortgage was recorded, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof under applicable law, in each case in form and substance reasonably satisfactory to the Collateral Agent (a “Mortgage Amendment”);
(ii) a “date-down” endorsement and a modification endorsement to the existing title insurance policy (or other similar title product, which may be a re-issuance of the existing title policy, in form acceptable to Administrative Agent) for such parcel of Mortgaged Property issued by the title company that issued such existing title insurance policy, which endorsement (or re-issuance of the existing title policy) shall update the effective date of such existing title insurance policy and amend the description of the insured Mortgage to include the Mortgage Amendment to such Mortgage insuring the Collateral Agent that such Mortgage, as amended by such Mortgage Amendment is a valid First Priority Lien on such Mortgaged Property in favor of the Collateral Trustee, Agent for the ratable benefit of the Secured Parties, a valid and, subject and contain no exceptions to any filing and/or recording referred title other than Permitted Liens and Permitted Encumbrances;
(iii) evidence that the Company has paid all premiums in respect of the endorsement to herein, perfected first priority security interest in any the existing title policy for such parcel of Mortgaged Property, as well as all charges for mortgage recording taxes and mortgage filing fees payable in connection with the Borrower and/or each applicable Guarantor shall deliver recording of the amendment to the Mortgage covering such parcel of Mortgaged Property, and all related expenses, if any;
(iv) customary favorable written opinions, addressed to the Collateral Trustee Agent and the Secured Creditors, of local counsel to the Credit Parties in each jurisdiction (i) in the case of the where a Mortgaged Property identified on Schedule 1.01(b), on or prior to the date that is ninety days after the Closing Date located and (ii) in where the case of any other Mortgaged Property acquired by applicable Credit Party granting 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 all appropriate places in all applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which such Mortgage as amended on said Mortgaged Property is located with respect to organized, regarding the due authorization, execution, delivery, perfection and enforceability of each such Mortgage, as amended, the Mortgages to be recorded in such state corporate formation, existence and good standing of the applicable Credit Party under the laws of its jurisdiction of formation, and such other matters as may be reasonably requested by the Administrative Agent, each in form and substance reasonably satisfactory to the Administrative Agent; and
(v) such other documents as the Administrative Agent may reasonably request, in each case in form and substance reasonably satisfactory to the 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, 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;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably request.
Appears in 1 contract
Samples: Abl Credit Agreement (Tesla, Inc.)
Mortgaged Property. In order to create in favor of Collateral Trustee, for the ratable benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any Mortgaged Property, the Borrower and/or each applicable Guarantor The Administrative Agent shall deliver to the Collateral Trustee have received (i) in the case of the a Mortgage with respect to each Mortgaged Property identified on Schedule 1.01(b), on or prior to the date that is ninety days after the Closing Date and (ii) in the case as of any other Mortgaged Property acquired by the Borrower or any Guarantor after the Closing Date, within ninety days following the acquisition thereof:
(a) fully executed and notarized Mortgagesdelivered by a duly authorized officer of the appropriate Credit Party, together with such certificates, affidavits, questionnaires, instruments or returns as shall be reasonably required in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering connection with filing or recordation thereof and to grant a perfected Mortgage Lien on such Mortgaged Property;
, (bii) an opinion such UCC-1 Financing Statements and other similar statements as are contemplated by such Mortgage, (iii) policies or certificates of counsel insurance as reasonably required by the Mortgage relating thereto, which policies or certificates shall comply with the insurance requirements contained in subsection 7.5, (which counsel shall be iv) evidence reasonably satisfactory acceptable to the Administrative Agent of payment by Borrower of all mortgage recording taxes, fees, charges, costs and expenses required for the recording of such Mortgage, (v) a Lender’s title policy with respect to each such Mortgage paid for by Borrower, issued by Title Company, together with such endorsements (including, without limitation, “tie-in” or “cluster”, first loss, last dollar, usury, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, zoning (provided that with respect to zoning, Borrower may, in lieu of such endorsement, deliver a zoning compliance letter prepared by the appropriate Governmental Authority or a zoning and site requirement summary report prepared by the Planning and Zoning Resource Corporation or other similar service reasonably acceptable to the Administrative Agent) in and so-called comprehensive coverage over covenants and restrictions), coinsurance and reinsurance as may be reasonably requested by the state in which such Mortgaged Property is located with respect to the enforceability of the Mortgages to be recorded in such state and such other matters as Administrative Agent may reasonably requestand provided that such endorsements are available in a given jurisdiction, in each case in form and substance reasonably satisfactory acceptable to the Administrative Agent;
(i) ALTA mortgagee title insurance policies or unconditional commitments therefor issued , insuring the Mortgage as a first Lien on the relevant Mortgaged Property and subject only to Permitted Encumbrances and such other Liens expressly agreed to by one or more title companies reasonably satisfactory to the 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”), (vi) such consents, approvals, estoppels, tenant subordination agreements or other instruments as shall be necessary or appropriate in amounts not less than the fair market value reasonable judgment of each Mortgaged Property and with such endorsements as the Administrative Agent may request, together with a title report issued in order for the owner or holder of the Fee Property or Leased Property constituting such Mortgaged Property to grant the Lien contemplated 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 (iivii) 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;
(d) no later than three (3) Business Days prior to the date on which a Mortgage is delivered Survey with respect to a such Mortgaged Property, in order to comply with the Flood Laws, the following documents (collectively, the “Flood Documents”) with respect to each Mortgaged Property, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent and enables the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that the Administrative Agent shall reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Atlantic Broadband Management, LLC)
Mortgaged Property. In order Within 90 days after the First Amendment Closing Date (or by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to create in favor of Collateral Trustee, for the ratable benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected first priority security interest in any each Mortgaged Property, the Borrower and/or each applicable Guarantor shall deliver to the Collateral Trustee (i) in the case a new mortgage or an amendment and restatement of the existing Mortgage (each, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent, and in form reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property identified on Schedule 1.01(b)and further to grant, on or prior to preserve, protect, confirm and perfect the date that is ninety days after the Closing Date lien and security interest thereby created and perfected; (ii) in the case of any other Mortgaged Property acquired by the Borrower or any Guarantor after the Closing Date, within ninety days following the acquisition thereof:
(a) fully executed for all Mortgaged Properties such title policies (and notarized Mortgages, title policy endorsements) with extended coverage in proper form for recording in all appropriate places in all an amount equal to the fair market value of the applicable jurisdictions, encumbering such Mortgaged Property;
(b) an opinion of counsel (which counsel shall be reasonably satisfactory to Administrative Agent) in the state in which , reflecting that there are no encumbrances affecting each such Mortgaged Property is located with respect to except as permitted under the enforceability of the Mortgages to be recorded in such state Credit Agreement, and such other matters as Administrative Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Administrative Agent;
, (iiii) ALTA mortgagee title insurance policies a favorable opinion of local or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent and the Lenders with respect to each such Mortgaged Property insuring the Mortgages as valid and subsisting Liens on enforceability of the Mortgaged Property described thereinMortgage Amendment, 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 together with such endorsements other opinions as the Administrative Agent may requestshall require, 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;
(d) 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, in each case in form and substance reasonably 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 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 any Mortgaged Property if the Borrower delivers to the applicable title company and the Administrative Agent (i) a copy of a survey previously conducted on such Mortgaged Property and (ii) 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 Administrative Agent (it being understood and enables agreed that the applicable title company to provide full survey coverage; and
(f) appraisals and other documents, instruments and certificates, in each case in form and substance satisfactory to Administrative Agent that of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended. The Borrower shall reasonably requestalso provide flood determinations and flood insurance with respect to each Mortgaged Property as required by Section 5.5(c) of the Credit Agreement. Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicable.
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Samples: Senior Lien Term Loan Credit Agreement (Forterra, Inc.)
