Real Property; Assets. (a) The Borrower shall use commercially reasonable efforts to, (i) no later than the date that is ninety (90) days of the Execution Date, (A) enter into one or more subordination, non-disturbance and attornment agreements or similar agreements, in form and substance acceptable to DOE (“SNDA”), with respect to the Turtle Creek Project Site, with the Turtle Creek Landlord and each applicable fee mortgagee to the Turtle Creek Landlord and (B) in relation to such SNDA deliver a customary legal opinion addressed to the Secured Parties from counsel qualified in the applicable jurisdiction in form and substance satisfactory to DOE; and (ii) on or prior to the date the Borrower exercises the second Renewal Option (as defined under each Mortgage Lease of the Turtle Creek Project Site), amend each Mortgaged Lease of the Turtle Creek Project Site to extend the term of such Mortgaged Lease to provide for one or more additional options that, together, if exercised, would renew each Mortgage Lease of the Turtle Creek Project Site for a term that extends to a date that is not earlier than the date that is one (1) year following the Maturity Date. (b) In the event that any Borrower Entity acquires any Real Property and such interest has not otherwise been made subject to the First Priority Lien of the Security Documents in favor of the Collateral Agent, for the benefit of DOE, then such Borrower Entity, within ninety (90) days (or such later date as may be agreed by DOE in its sole discretion) of the request or acquisition of any Real Property, as applicable, shall take all such actions and execute and deliver, or cause to be executed and delivered, the applicable Real Property Documents with respect to each such owned Real Property or applicable leasehold mortgage, subordination, pledge and/or estoppel with respect to each such leased Real Property, in each case that the Collateral Agent may request to create in favor of the Collateral Agent, for the benefit of DOE, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in such Real Property. In addition to the foregoing, the Borrower shall, at the request of DOE, deliver, from time to time, to DOE such appraisals as are required by law or regulation of Real Property owned by a Borrower Entity with respect to which the Collateral Agent has been granted a Lien.
Appears in 1 contract
Samples: Loan Guarantee Agreement (Eos Energy Enterprises, Inc.)
Real Property; Assets. (a) The Borrower shall use commercially reasonable efforts to, (i) no later than the date that is ninety (90) days of the Execution Date, (A) enter into one or more subordination, non-disturbance and attornment agreements or similar agreements, in form and substance acceptable to DOE (“SNDA”), with respect to the Turtle Creek Project Site, In connection with the Turtle Creek Landlord and each applicable fee mortgagee to the Turtle Creek Landlord and (B) in relation to such SNDA deliver a customary legal opinion addressed to the Secured Parties from counsel qualified in the applicable jurisdiction in form and substance satisfactory to DOE; and (ii) on or prior to the date the Borrower exercises the second Renewal Option (as defined under each Mortgage Lease pledge of the Turtle Creek Project Site), amend each Mortgaged Lease of the Turtle Creek Project Site to extend the term of such Mortgaged Lease to provide for one or more additional options that, together, if exercised, would renew each Mortgage Lease of the Turtle Creek Project Site for a term that extends to a date that is not earlier than the date that is one (1) year following the Maturity Date.
(b) In the event that any Borrower Entity acquires any Real Property Assets, the Collateral Agent and the Administrative Agent shall have received the following upon the date such interest has not otherwise been made subject to Real Property Assets are pledged (unless waived by the First Priority Lien of the Security Documents Administrative Agent in its sole discretion):
a. a Real Property Mortgage encumbering each Real Property Asset in favor of the Collateral Agent, for the benefit of DOEthe Secured Parties, then such duly executed and acknowledged by the Borrower Entity, within ninety (90) days (or such later date as may be agreed by DOE in its sole discretion) Subsidiary that is the owner of the request or acquisition holder of any interest in such Real PropertyProperty Asset, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Real Property Asset is situated, together with such certificates, affidavits, questionnaires or returns as applicableshall be reasonably and customarily required by the Title Company in connection with the recording or filing thereof to create a lien under applicable requirements of law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall take all such actions be in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent; provided, however, that Borrower shall only be obligated to execute and deliver, or cause to be executed and delivered, to the applicable Collateral Agent any relevant Real Property Documents with respect to each Mortgage and shall not be responsible for recording such owned Real Property or applicable leasehold mortgage, subordination, pledge and/or estoppel with respect to each such leased Real Property, Mortgage in each case the event that the Collateral Agent may request shall fail to create in favor of the Collateral Agent, for the benefit of DOE, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in do so after such Real Property. In addition Property Mortgage and any other related deliverables required to the foregoing, the Borrower shall, at the request of DOE, deliver, from time be delivered to time, to DOE such appraisals as are required by law or regulation of Real Property owned by a Borrower Entity with respect to which the Collateral Agent has or the Administrative Agent in connection with such filing pursuant to the terms of this Agreement have been granted a Lien.executed and delivered;
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Spirit Airlines, Inc.)
Real Property; Assets. In connection with the pledge of any Real Property Assets, the Collateral Agent and the Administrative Agent shall have received the following upon the date such Real Property Assets are pledged (unless waived by the Administrative Agent in its sole discretion):
(a) The Borrower shall use commercially reasonable efforts to, (i) no later than the date that is ninety (90) days of the Execution Date, (A) enter into one or more subordination, non-disturbance and attornment agreements or similar agreements, in form and substance acceptable to DOE (“SNDA”), with respect to the Turtle Creek Project Site, with the Turtle Creek Landlord and each applicable fee mortgagee to the Turtle Creek Landlord and (B) in relation to such SNDA deliver a customary legal opinion addressed to the Secured Parties from counsel qualified in the applicable jurisdiction in form and substance satisfactory to DOE; and (ii) on or prior to the date the Borrower exercises the second Renewal Option (as defined under each Mortgage Lease of the Turtle Creek Project Site), amend each Mortgaged Lease of the Turtle Creek Project Site to extend the term of such Mortgaged Lease to provide for one or more additional options that, together, if exercised, would renew each Mortgage Lease of the Turtle Creek Project Site for a term that extends to a date that is not earlier than the date that is one (1) year following the Maturity Date.
(b) In the event that any Borrower Entity acquires any Real Property and such interest has not otherwise been made subject to the First Priority Lien of the Security Documents Mortgage encumbering each Real Property Asset in favor of the Collateral Agent, for the benefit of DOEthe Secured Parties, then such duly executed and acknowledged by the Borrower Entity, within ninety (90) days (or such later date as may be agreed by DOE in its sole discretion) Subsidiary that is the owner of the request or acquisition holder of any interest in such Real PropertyProperty Asset, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Real Property Asset is situated, together with such certificates, affidavits, questionnaires or returns as applicableshall be reasonably and customarily required by the Title Company in connection with the recording or filing thereof to create a lien under applicable requirements of law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall take all such actions be in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent; provided, however, that Borrower shall only be obligated to execute and deliver, or cause to be executed and delivered, to the applicable Collateral Agent any relevant Real Property Documents Mortgage and shall not be responsible for recording such Real Property Mortgage in the event that the Collateral Agent shall fail to do so after such Real Property Mortgage and any other related deliverables required to be delivered to the Collateral Agent or the Administrative Agent in connection with such filing pursuant to the terms of this Agreement have been executed and delivered;
(b) with respect to each such owned Real Property Asset, such consents, approvals, amendments, supplements, estoppels (but only to the extent obtained), tenant subordination agreements (unless the applicable tenant’s lease provides for automatic subordination) or applicable other instruments as necessary to consummate the transactions contemplated by the Loan Documents or as shall reasonably be deemed necessary by the Administrative Agent or the Collateral Agent in order for the owner or holder of the fee or ground leasehold mortgage, subordination, pledge and/or estoppel interest constituting such Real Property Asset to grant the Lien contemplated by the Real Property Mortgage with respect to such Real Property Asset and the owner or ground tenant thereof;
(c) with respect to each Real Property Mortgage, either a bringdown of an existing title policy or a loan policy of title insurance (or marked up title insurance commitment having the effect of a loan policy of title insurance) insuring the Lien of such leased Real Property, Property Mortgage as a valid first mortgage Lien on the Real Property Asset and fixtures described therein in each case that the Collateral amount reasonably acceptable to the Administrative Agent may request to create in favor of and the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by a Title Company, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Administrative Agent and the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (if available in the applicable jurisdiction of the Real Property Asset) as shall be reasonably requested by the Administrative Agent or the Collateral Agent (including endorsements on matters relating to usury, first loss, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Real Property Asset, and such state or condition existed on the date of the pledge of such Real Property Asset and such state or condition does not materially and adversely affect the use or the value of such Real Property Asset for the benefit business of DOE, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in such Real Property. In addition to the foregoingBorrower and its Affiliates, the Borrower shallshall have no obligation to procure such endorsement or other documentation, at and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the request of DOE, deliver, from time to time, to DOE such appraisals as are required by law Administrative Agent or regulation of the Collateral Agent or a datedown endorsement on the existing Title Policy for each existing Real Property owned Mortgage;
(d) with respect to each Real Property Asset, such affidavits, certificates, information and instruments of indemnification (including a so-called “gap” indemnification) as shall be reasonably and customarily required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(e) evidence reasonably acceptable to the Administrative Agent and the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Real Property Mortgages and issuance of the title policies referred to above;
(f) with respect to each Real Property Asset, copies of all leases in which the Borrower or any Subsidiary holds the lessor’s interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Real Property Asset, such leases shall (x) be subordinate to the Lien of the Real Property Mortgage to be recorded against such Real Property Asset, either expressly by its terms or pursuant to a Borrower Entity subordination, non- disturbance and attornment agreement in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent, with respect to which the Borrower or its applicable Subsidiary shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Administrative Agent and the Collateral Agent, provided that, if the Administrative Agent has or the Collateral Agent, respectively, fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been granted reasonably accepted by the Administrative Agent and the Collateral Agent;
(g) Surveys with respect to each Real Property Asset (or survey updates to the extent sufficient to obtain survey coverage under the title policy); provided that, if the Borrower is able to obtain a Lien“no change” affidavit reasonably acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Real Property Asset, and issuing all available survey related endorsements and coverages, then a new Survey shall not be requested;
(h) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Real Property Asset; and
(i) a local law enforceability opinion of counsel in the jurisdiction where each Real Property Asset is located relating to such Real Property Asset described above, which opinion of counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent; provided, however, that Xxxxx Xxxx PLC is hereby approved by the Administrative Agent.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Spirit Airlines, Inc.)
Real Property; Assets. (a) The Borrower shall use commercially reasonable efforts to, (i) no later than the date that is ninety (90) days Schedule 4.1F annexed hereto sets forth all Real Property Assets of Company or any of its Subsidiaries as of the Execution Effective Date and identifies each such Real Property Asset which is subject to a Deed of Trust as of the Effective Date. Subject to subsection 6.11, Agent shall have received from Company and each of its Subsidiaries having Real Property Assets required to be subject to a Deed of Trust pursuant to this Agreement and which were not made subject to a Deed of Trust on the Closing Date, (A) enter into one fully executed counterparts of such amendments to Deeds of Trust, or more subordination, non-disturbance and attornment agreements or similar agreementsDeeds of Trust, in form and substance acceptable to DOE (“SNDA”), with respect to the Turtle Creek Project Site, with the Turtle Creek Landlord and each applicable fee mortgagee to the Turtle Creek Landlord and (B) in relation to such SNDA deliver a customary legal opinion addressed to the Secured Parties from counsel qualified in the applicable jurisdiction either case in form and substance satisfactory to DOE; Agent and (ii) on in recordable form, together with evidence that such counterparts of such amendments to Deeds of Trust or prior Deeds of Trust have been recorded, or as soon as practicable following the Effective Date will be recorded, in all places to the date extent necessary or desirable, in the Borrower exercises judgment of Agent, so as to effectively amend the second Renewal Option (as defined under each Mortgage Lease Deeds of Trust to the Turtle Creek Project Site), amend each Mortgaged Lease of the Turtle Creek Project Site extent necessary or appropriate to extend the term of such Mortgaged Lease to provide for one or more additional options that, together, if exercised, would renew each Mortgage Lease of the Turtle Creek Project Site for a term that extends to a date that is not earlier than the date that is one (1) year following the Maturity Date.
(b) In the event that any Borrower Entity acquires encumber any Real Property and such interest has Assets required to be subject to a Deed of Trust pursuant to this Agreement which were not otherwise been made subject to a Deed of Trust on the First Priority Lien Closing Date, subject only to Permitted Encumbrances. In addition, Agent shall have received such endorsements to the Title Insurance Policies as are reasonably required by Agent to insure that execution of this Agreement does not impair the validity of the Security Documents in favor Deeds of the Collateral Agent, for the benefit of DOE, then such Borrower Entity, within ninety (90) days (or such later date as may be agreed by DOE in its sole discretion) of the request or acquisition of any Real Property, as applicable, shall take all such actions and execute and deliver, or cause to be executed and delivered, the applicable Real Property Documents Trust with respect to each such owned the Real Property or applicable leasehold mortgage, subordination, pledge and/or estoppel with respect to each such leased Real Property, in each case that Assets insured thereunder recorded on the Collateral Agent may request to create in favor of the Collateral Agent, for the benefit of DOE, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in such Real Property. In addition to the foregoing, the Borrower shall, at the request of DOE, deliver, from time to time, to DOE such appraisals as are required by law or regulation of Real Property owned by a Borrower Entity with respect to which the Collateral Agent has been granted a LienClosing Date.
Appears in 1 contract
Real Property; Assets. In connection with the pledge of any Real Property Assets, the Collateral Agent and the Administrative Agent shall have received the following upon the date such Real Property Assets are pledged (unless waived by the Administrative Agent in its sole discretion):
(a) The Borrower shall use commercially reasonable efforts to, (i) no later than the date that is ninety (90) days of the Execution Date, (A) enter into one or more subordination, non-disturbance and attornment agreements or similar agreements, in form and substance acceptable to DOE (“SNDA”), with respect to the Turtle Creek Project Site, with the Turtle Creek Landlord and each applicable fee mortgagee to the Turtle Creek Landlord and (B) in relation to such SNDA deliver a customary legal opinion addressed to the Secured Parties from counsel qualified in the applicable jurisdiction in form and substance satisfactory to DOE; and (ii) on or prior to the date the Borrower exercises the second Renewal Option (as defined under each Mortgage Lease of the Turtle Creek Project Site), amend each Mortgaged Lease of the Turtle Creek Project Site to extend the term of such Mortgaged Lease to provide for one or more additional options that, together, if exercised, would renew each Mortgage Lease of the Turtle Creek Project Site for a term that extends to a date that is not earlier than the date that is one (1) year following the Maturity Date.
(b) In the event that any Borrower Entity acquires any Real Property and such interest has not otherwise been made subject to the First Priority Lien of the Security Documents Mortgage encumbering each Real Property Asset in favor of the Collateral Agent, for the benefit of DOEthe Secured Parties, then such duly executed and acknowledged by the Borrower Entity, within ninety (90) days (or such later date as may be agreed by DOE in its sole discretion) Subsidiary that is the owner of the request or acquisition holder of any interest in such Real PropertyProperty Asset, and otherwise in form for recording in the recording office of each applicable political subdivision where each such Real Property Asset is situated, together with such certificates, affidavits, questionnaires or returns as applicableshall be reasonably and customarily required by the Title Company in connection with the recording or filing thereof to create a lien under applicable requirements of law, and such financing statements and any other instruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, all of which shall take all such actions be in form and substance reasonably satisfactory to the Administrative Agent and the Collateral Agent; provided, however, that Borrower shall only be obligated to execute and deliver, or cause to be executed and delivered, to the applicable Collateral Agent any relevant Real Property Documents Mortgage and shall not be responsible for recording such Real Property Mortgage in the event that the Collateral Agent shall fail to do so after such Real Property Mortgage and any other related deliverables required to be delivered to the Collateral Agent or the Administrative Agent in connection with such filing pursuant to the terms of this Agreement have been executed and delivered;
(b) with respect to each such owned Real Property Asset, such consents, approvals, amendments, supplements, estoppels (but only to the extent obtained), tenant subordination agreements (unless the applicable tenant’s lease provides for automatic subordination) or applicable other instruments as necessary to consummate the transactions contemplated by the Loan Documents or as shall reasonably be deemed necessary by the Administrative Agent or the Collateral Agent in order for the owner or holder of the fee or ground leasehold mortgage, subordination, pledge and/or estoppel interest constituting such Real Property Asset to grant the Lien contemplated by the Real Property Mortgage with respect to such Real Property Asset and the owner or ground tenant thereof;
(c) with respect to each Real Property Mortgage, either a bringdown of an existing title policy or a loan policy of title insurance (or marked up title insurance commitment having the effect of a loan policy of title insurance) insuring the Lien of such leased Real Property, Property Mortgage as a valid first mortgage Lien on the Real Property Asset and fixtures described therein in each case that the Collateral amount reasonably acceptable to the Administrative Agent may request to create in favor of and the Collateral Agent, which policy (or such marked-up commitment) (each, a “Title Policy”) shall (A) be issued by a Title Company, (B) to the extent necessary and available, include such reinsurance arrangements (with provisions for direct access, if necessary) as shall be reasonably acceptable to the Administrative Agent and the Collateral Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under applicable law (i.e., policies which insure against losses regardless of location or allocated value of the insured property up to a stated maximum coverage amount), (D) have been supplemented by such endorsements (if available in the applicable jurisdiction of the Real Property Asset) as shall be reasonably requested by the Administrative Agent or the Collateral Agent (including endorsements on matters relating to usury, first loss, zoning, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, environmental lien, subdivision, mortgage recording tax, separate tax lot, and so-called comprehensive coverage over covenants and restrictions); provided that to the extent that any such endorsement(s) or other documentation cannot be issued or is not available due to the state or condition of the Real Property Asset, and such state or condition existed on the date of the pledge of such Real Property Asset and such state or condition does not materially and adversely affect the use or the value of such Real Property Asset for the benefit business of DOE, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in such Real Property. In addition to the foregoingBorrower and its Affiliates, the Borrower shallshall have no obligation to procure such endorsement or other documentation, at and (E) contain no exceptions to title other than Permitted Liens and other exceptions reasonably acceptable to the request of DOE, deliver, from time to time, to DOE such appraisals as are required by law Administrative Agent or regulation of the Collateral Agent or a datedown endorsement on the existing Title Policy for each existing Real Property owned Mortgage;
(d) with respect to each Real Property Asset, such affidavits, certificates, information and instruments of indemnification (including a so-called “gap” indemnification) as shall be reasonably and customarily required to induce the Title Company to issue the title policy/ies and endorsements contemplated above;
(e) evidence reasonably acceptable to the Administrative Agent and the Collateral Agent of payment by the Borrower of all title policy premiums, search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the recording of the Real Property Mortgages and issuance of the title policies referred to above;
(f) with respect to each Real Property Asset, copies of all leases in which the Borrower or any Subsidiary holds the lessor's interest or other agreements relating to possessory interests if any. To the extent any of the foregoing leases affect any Real Property Asset, such leases shall (x) be subordinate to the Lien of the Real Property Mortgage to be recorded against such Real Property Asset, either expressly by its terms or pursuant to a Borrower Entity subordination, non-disturbance and attornment agreement in form and substance reasonably acceptable to the Administrative Agent and the Collateral Agent, with respect to which the Borrower or its applicable Subsidiary shall have used its commercially reasonable efforts to obtain and (y) shall otherwise be reasonably acceptable to the Administrative Agent and the Collateral Agent, provided that, if the Administrative Agent has or the Collateral Agent, respectively, fails to notify the Borrower of rejection of the lease within 10 Business Days from receipt of the lease, the lease shall be deemed to have been granted reasonably accepted by the Administrative Agent and the Collateral Agent;
(g) Surveys with respect to each Real Property Asset (or survey updates to the extent sufficient to obtain survey coverage under the title policy); provided that, if the Borrower is able to obtain a Lien“no change” affidavit reasonably acceptable to the Title Company to enable it to issue a Title Policy removing all exceptions which would otherwise have been raised by the Title Company as a result of the absence of a new Survey for such Real Property Asset, and issuing all available survey related endorsements and coverages, then a new Survey shall not be requested;
(h) a completed Federal Emergency Management Agency Standard Flood Hazard Determination with respect to each Real Property Asset; and
(i) a local law enforceability opinion of counsel in the jurisdiction where each Real Property Asset is located relating to such Real Property Asset described above, which opinion of counsel shall be in form and substance, and from counsel, reasonably satisfactory to the Administrative Agent; provided, however, that Xxxxx Xxxx PLC is hereby approved by the Administrative Agent.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Spirit Airlines, Inc.)
