Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall have received from Borrower and each applicable Guarantor: (i) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any); (ii) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent; (iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest; (iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate records; (v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and (vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required. (vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Tronox LTD), Credit and Guaranty Agreement (Tronox LTD)
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, The Collateral Agent shall have received from Borrower (in form and each applicable Guarantor:substance satisfactory to the Collateral Agent):
(i) fully executed and notarized Mortgagesmortgages, deeds of trust or deeds to secure debt (each a "MORTGAGE" and, collectively, the "MORTGAGES") encumbering the fee interest of the Loan Parties in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(greal property asset owned by a Loan Party set forth on SCHEDULE 4.01(i) (eacheach a "MORTGAGED PROPERTY" and, a “Mortgaged Property”collectively, the "MORTGAGED PROPERTIES"), together with all related title documents (if any)such UCC-1 financing statements or similar notices as the Collateral Agent shall reasonably deem appropriate with respect to each such Mortgaged Property;
(ii) ALTA or other appropriate form mortgagee title insurance policies (the "MORTGAGE POLICIES") issued by a title insurance company satisfactory to the Collateral Agent (the "TITLE INSURANCE COMPANY"), in an opinion amount reasonably satisfactory to the Collateral Agent with respect to each Mortgaged Property, which amount shall not exceed the fair market value for each such Mortgaged Property, assuring the Collateral Agent that the applicable Mortgages create valid and enforceable first priority mortgage liens on the respective Mortgaged Property, free and clear of counsel (all defects and encumbrances except Permitted Encumbrances, which counsel Mortgage Policies shall contain such endorsements as shall be reasonably satisfactory to the Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction Agent and such for any other matters as that the Collateral Agent may reasonably request, in each case and providing affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent;
(iii) maps or plats of an as-built survey of the sites of the Mortgaged Properties certified to the Collateral Agent and the Title Insurance Company in a manner reasonably satisfactory to them, dated a date reasonably satisfactory to the Collateral Agent and the Title Insurance Company by an independent professional licensed land surveyor reasonably satisfactory to the Collateral Agent and the Title Insurance Company, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception contained in the case applicable Mortgage Policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1999, and, without limiting the generality of each Leasehold Property that is a Material Real Estate Asset located in the United States foregoing, there shall be surveyed and shown on such maps, plats or in another jurisdiction where surveys the documents set forth in this clause following: (g)(iiiA) are reasonably customarythe locations on such sites of all the buildings, then structures and other improvements and the established building setback lines; (B) the lines of streets abutting the sites and width thereof; (C) all access and other easements appurtenant to the extent available after sites necessary to use the use sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of commercially reasonable efforts the sites or otherwise known to the surveyor; (E) any encroachments on any adjoining property by the Credit Parties, (1) a Landlord Consent building structures and Estoppel improvements on the sites; and (2F) evidence that such Leasehold Property if the site is described as being on a Recorded Leasehold Interestfiled map, a legend relating the survey to said map;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements if requested by the Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (eachAgent, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate recordsmortgaged properties;
(v) (A) certification from a completed Flood Certificate with respect to each Mortgaged Property located registered engineer or land surveyor in the United States, which Flood Certificate shall (x) be addressed a form reasonably satisfactory to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from or other evidence acceptable to the Collateral Agent that none of the improvements on the Mortgaged Properties are located within any area designated by the Director of the Federal Emergency Management Agency as a "special flood hazard" area or if any improvements on the Mortgaged Properties are located within a "special flood hazard" area, evidence of a flood insurance policy (xif such insurance is required by applicable Law) as from a company and in an amount satisfactory to the existence of such Mortgaged Property and (y) as to whether Collateral Agent for the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements portion of the Flood Programpremises, naming the Collateral Agent, for the benefit of the Lenders, as mortgagee; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified evidence reasonably satisfactory to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent that each of the Mortgaged Properties, and the Borrower agree to exclude Real Estate Assets from uses of the Collateral and the Borrower shall not be required to deliver any MortgagesMortgaged Properties, opinions of counsel, Title Polices and surveys, if, are in each case, as reasonably determined by the Collateral Agent compliance in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders therebyall material respects with all applicable Laws.
Appears in 2 contracts
Samples: Credit Agreement (Synagro Technologies Inc), Credit Agreement (Synagro Technologies Inc)
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral The Administrative Agent shall have received from Borrower received, in form and each applicable Guarantorsubstance satisfactory to the Agents:
(i) fully executed and notarized Mortgagesmortgages, deeds of trust or deeds to secure debt (each, as the same may be amended, modified, restated or supplemented from time to time, a "Mortgage Instrument" and collectively the "Mortgage Instruments") encumbering the fee interest in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset the properties listed in Schedule 3.1(g) 4.1-2 as properties owned by the Borrowers and, to the extent required by the Administrative Agent, the leasehold interest in the properties listed in Schedule 4.1-2 as properties that are warehouses, plants or other real properties material to the conduct of the Borrowers' business and are leased by the Borrowers (each, each a “"Mortgaged Property”), together with all related title documents (if any" and collectively the "Mortgaged Properties");
(ii) an opinion a title report in respect of counsel each of the Mortgaged Properties;
(which counsel shall be reasonably satisfactory to Collateral Agentiii) in each state or jurisdiction in which a Mortgaged Property is located with respect to each Mortgaged Property, an ALTA mortgagee title insurance policy issued by a title insurance company (the enforceability of Mortgages "Title Insurance Company") selected by the Administrative Agent and reasonably acceptable to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably requestthe Parent Borrower (the "Mortgage Policies"), in amounts satisfactory to the Administrative Agent, assuring the Administrative Agent that each case of the Mortgage Instruments creates a valid and enforceable first priority mortgage lien on the applicable Mortgaged Property, free and clear of all defects and encumbrances except Permitted Liens, which Mortgage Policies shall be in form and substance reasonably satisfactory to Collateral Agent;
(iii) in the case Administrative Agent and shall provide for affirmative insurance and such reinsurance as the Administrative Agent may reasonably request, all of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each foregoing in form and substance reasonably satisfactory to Collateral Agent the Administrative Agent;
(iv) evidence as to (A) whether any Mortgaged Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a "Flood Hazard Property") and (B) evidence satisfactory to Collateral 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 each if any Mortgaged Property is a Flood Hazard Property, (1) whether the community in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located is participating in a the National Flood ZoneInsurance Program, (2) the applicable Borrower’s 's written acknowledgment of receipt of written notification from the Collateral Administrative Agent (xy) as to the existence of fact that such Mortgaged Property is a Flood Hazard Property and (yz) as to whether the community in which each Mortgaged such Flood Hazard Property is located is participating in the National Flood ProgramInsurance Program and (3) copies of insurance policies or certificates of insurance of the Borrowers and their Subsidiaries evidencing flood insurance reasonably satisfactory to the Administrative Agent and naming the Administrative Agent as loss payee on behalf of the Lenders;
(v) maps or plats of an as-built survey of (A) the sites of the owned Mortgaged Properties and (B) to the extent reasonably required by the Administrative Agent, the leased Mortgaged Properties, in each case certified to the Administrative Agent and the Title Insurance Company in a manner reasonably satisfactory to them, dated a date satisfactory to each of the Administrative Agent and the Title Insurance Company by an independent professional licensed land surveyor selected by the Parent Borrower and reasonably satisfactory to each of the Administrative Agent and the Title Insurance Company, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception contained in the applicable Mortgage Policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such maps, plats or surveys the following: (A) the locations on such sites of all the buildings, structures and other improvements and the established building setback lines; (B) the lines of streets abutting the sites and width thereof; (C) all access and other easements appurtenant to the sites necessary to use the sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to the surveyor; (E) any encroachments on any adjoining property by the building structures and improvements on the sites; and (CF) if the site is described as being on a filed map, a legend relating the survey to such map;
(vi) satisfactory environmental reviews of all owned Mortgaged Property is located Properties, including but not limited to Phase I environmental assessments, together with reliance letters in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements favor of the Flood ProgramLenders;
(vii) opinions of counsel to the Borrowers for each jurisdiction in which the Mortgaged Properties are located;
(viii) to the extent readily available, zoning letters from each municipality or other Governmental Authority for each jurisdiction in which the Mortgaged Properties are located;
(ix) an appraisal of each owned Mortgaged Property, in form and substance satisfactory to the Administrative Agent; and
(vix) ALTA surveys of all to the extent requested by the Administrative Agent, with respect to each leased Mortgaged Properties located in the United States which are not Leasehold Properties, Property (i) a survey certified to Collateral the Administrative Agent provided that, if the applicable Borrower is able to obtain by a “no change” affidavit acceptable firm of surveyors reasonably satisfactory to the title company Administrative Agent and does deliver such certificate (ii) a landlord waiver in form and substance satisfactory to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be requiredAdministrative Agent.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 2 contracts
Samples: Credit Agreement (Si International Inc), Credit Agreement (Si International Inc)
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, The Collateral Agent shall have received from Borrower (in form and each applicable Guarantor:substance satisfactory to the Collateral Agent):
(i) fully executed and notarized mortgages, deeds of trust or deeds to secure debt (each a "Mortgage" and collectively the "Mortgages, ") encumbering the fee interest of the Credit Parties in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in real property asset owned by a Credit Party set forth on Schedule 3.1(g5.1(f)(i) (each, each a “"Mortgaged Property”" and collectively the "Mortgaged Properties"), together with all related title documents (if any)such UCC-1 financing statements as the Collateral Agent shall deem appropriate with respect to each such Mortgaged Property;
(ii) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral the Administrative Agent) in each the state or jurisdiction in which a each Mortgaged Property is located with respect to the enforceability of Mortgages the form of Mortgage and sufficiency of the form of UCC-1 financing statements to be recorded or filed in such state or jurisdiction state, if applicable, and such other matters as the Collateral Agent may reasonably request, in form and substance satisfactory to the Collateral Agent;
(iii) ALTA or other appropriate form mortgagee title insurance policies (the "Mortgage Policies") issued by a title insurer company satisfactory to the Collateral Agent (the "Title Insurance Company"), in an amount satisfactory to the Collateral Agent with respect to each case Mortgaged Property, which amount shall not exceed the fair market value for each such Mortgaged Property, assuring the Collateral Agent that the applicable Mortgages create valid and enforceable first priority mortgage liens on the respective Mortgaged Property, free and clear of all defects and encumbrances except Permitted Liens which Mortgage Policies shall be in form and substance reasonably satisfactory to Collateral Agent;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies and containing such endorsements as shall be reasonably satisfactory to the Collateral Agent with respect to each Mortgaged Property located in and for any other matters that the United States (eachCollateral Agent may request, a “Title Policy”)and providing affirmative insurance and such reinsurance as the Collateral Agent may request, in amounts not less than all of the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each foregoing in form and substance reasonably satisfactory to the Collateral Agent.
(iv) maps or plats of an as-built survey of the sites of the Mortgaged Properties certified to the Administrative Agent and the Title Insurance Company in a manner reasonably satisfactory to them, dated a date satisfactory to the Collateral Agent and the Title Insurance Company by an independent professional licensed land surveyor reasonably satisfactory to the Collateral Agent and the Title Insurance Company, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception contained in the applicable title policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such maps, plats or surveys the following: (A) the locations on such sites of all the buildings, structures and other improvements and the established building setback lines; (B) evidence satisfactory to Collateral Agent that such Credit Party has paid the lines of streets abutting the sites and width thereof; (C) all access and other easements appurtenant to the title company sites necessary to use the sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to the appropriate governmental authorities all expenses surveyor; (E) any encroachments on any adjoining property by the building structures and premiums of improvements on the title company sites; and all other sums required in connection with (F) if the issuance of each Title Policy and all recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording site is described as being on a filed map, a legend relating the Mortgages for each Mortgaged Property in the appropriate real estate recordssurvey to said map;
(v) (A) certification from a completed Flood Certificate with respect to each Mortgaged Property located registered engineer or land surveyor in the United States, which Flood Certificate shall (x) be addressed a form reasonably satisfactory to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from or other evidence acceptable to the Collateral Agent that none of the improvements on the Mortgaged Properties are located within any area designated by the Director of the Federal Emergency Management Agency as a "special flood hazard" area or if any improvements on the Mortgaged Properties are located within a "special flood hazard" area, evidence of a flood insurance policy (xif such insurance is required by applicable law) as from a company and in an amount satisfactory to the existence of such Mortgaged Property and (y) as to whether Collateral Agent for the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements portion of the Flood Programpremises, naming the Collateral Agent, for the benefit of the Lenders, as mortgagee; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified evidence satisfactory to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent that each of the Mortgaged Properties, and the Borrower agree uses of the Mortgaged Properties, are in compliance in all material respects with all applicable laws, regulations and ordinances including without limitation health and environmental protection laws, erosion control ordinances, storm drainage control laws, doing business and/or licensing laws, zoning laws (the evidence submitted as to exclude Real Estate Assets from zoning should include the Collateral zoning designation made for each of the Mortgaged Properties, the permitted uses of each such Mortgaged Property under such zoning designation and zoning requirements as to parking, lot size, ingress, egress and building setbacks) and laws regarding access and facilities for disabled persons including, but not limited to, the federal Architectural Barriers Act, the Fair Housing Amendments Act of 1988, the Rehabilitation Act of 1973 and the Borrower shall not be required to deliver any Mortgages, opinions Americans with Disabilities Act of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby1990.
Appears in 2 contracts
Samples: Credit Agreement (Knoll Inc), Credit Agreement (Knoll Inc)
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, The Collateral Agent shall have received from Borrower (in form and each applicable Guarantor:substance satisfactory to the Lead Arrangers):
(i) fully executed and notarized mortgages, deeds of trust or deeds to secure debt (each a “Mortgage” and, collectively, the “Mortgages, ”) encumbering the fee interest of the Credit Parties in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in real property asset owned by a Credit Party set forth on Schedule 3.1(g4.01(k)(i) (eacheach an “Owned Mortgaged Property” and collectively, the “Owned Mortgaged Properties”) and the leasehold interest of the Credit Parties in each real property asset leased by a Credit Party set forth on Schedule 4.01(k)(i) (each a “Leased Mortgaged Property” and, collectively, the “Leased Mortgaged Properties” and, together with the Owned Mortgaged Property, each a “Mortgaged Property” and, collectively, the “Mortgaged Properties”), together with all related title documents (if any)such UCC-1 financing statements or similar notices as the Collateral Agent shall reasonably deem appropriate with respect to each such Mortgaged Property;
(ii) an opinion of counsel (which counsel the Borrower shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which have obtained a Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a fully executed Landlord Consent and Estoppel and (2) with respect to each Leased Mortgaged Property, together with evidence that such Leasehold Leased Mortgaged Property is a Recorded Leasehold Interest;
(iv) (Aiii) ALTA or other appropriate form mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor (the “Mortgage Policies”) issued by one or more title companies Chicago Title Insurance Company (the “Title Insurance Company”), in an amount reasonably satisfactory to Collateral Agent the Lead Arrangers with respect to each Mortgaged Property located in the United States (eachProperty, a “Title Policy”), in amounts which amount shall not less than exceed the fair market value of for each such Mortgaged Property, together with a title report issued by a title company with respect theretoassuring the Lead Arrangers that the applicable Mortgages create valid and enforceable first priority mortgage liens on the respective Mortgaged Property, dated not more than thirty days prior free and clear of all defects and encumbrances except Permitted Encumbrances, which Mortgage Policies shall contain such endorsements as shall be reasonably satisfactory to the Closing Date Lead Arrangers and for any other matters that the Lead Arrangers may request, and providing affirmative insurance and such reinsurance as the Lead Arrangers may request, all of the foregoing in form and substance reasonably satisfactory to the Lead Arrangers;
(iv) if requested by the Lead Arrangers, copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate records;Mortgage Policies; and
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed such evidence satisfactory to the Collateral Agent and (y) otherwise comply with Lead Arrangers as the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as Lead Arrangers reasonably may request to the existence effect that each of such the Mortgaged Property Properties, and (y) as to whether the community in which each uses of the Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood ProgramProperties, evidence that the Borrower has obtained a policy of flood insurance that is are in compliance in all material respects with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be requiredLaws.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 2 contracts
Samples: Credit Agreement (Hillman Companies Inc), Credit Agreement (Hillman Companies Inc)
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject addition to any filing and/or recording referred other agreements, documents or instruments at any time to hereinbe delivered by Borrower to Lender, perfected First Priority security interest as soon as possible, but in certain Real Estate Assetsany event prior to January 31, Collateral Agent 2001, Borrower shall have received from Borrower and each applicable Guarantor:
(i) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any);
(ii) an opinion of counsel (which counsel shall deliver or cause to be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect delivered to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to thereinfollowing, each in form and substance reasonably satisfactory to Collateral Agent Lender:
(a) the Mortgage, duly authorized, executed and (B) evidence satisfactory to Collateral Agent that such Credit Party has paid to the title company or to the appropriate governmental authorities all expenses delivered by Hidel Partners 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 each Mortgaged Property in the appropriate real estate recordsBorrower;
(vb) (A) a completed Flood Certificate with respect environmental audits of the Real Property to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed subject to the Collateral Agent Mortgage conducted by an independent environmental engineering firm acceptable to Lender, and in form, scope and methodology satisfactory to Lender, confirming (yi) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all material applicable requirements Environmental Laws and (ii) the absence of any material environmental problems;
(c) a valid and effective title insurance policy with respect to the Real Property to be subject to the Mortgage issued by a company and agent acceptable to Lender (i) insuring the priority, amount and sufficiency of the Flood ProgramMortgage, (ii) insuring against matters that would be disclosed by surveys and (iii) containing any legally available endorsements, assurances or affirmative coverage requested by Lender for protection of its interests;
(d) evidence that Lender has a first priority mortgage and lien upon, and security interest in, the Real Property and related assets of Hidel Partners and Borrower to be subject to the Mortgage;
(e) a written appraisal as to the Real Property of Hidel Partners and Borrower to be subject to the Mortgage, at the expense of Borrower, by an appraiser acceptable to Lender, addressed to Lender and on which Lender is expressly permitted to rely, in form, scope and methodology satisfactory to Lender;
(f) an executed original of the release and discharge of the existing Mortgage and Security Agreement by Hidel Partners in favor of NJEDA and the issuer of the Fixed Rate NJEDA Bond Letter of Credit in form acceptable for recording with the applicable recording office, with respect to the Real Property and related assets to be subject to the Mortgage, duly authorized, executed and delivered by the NJEDA and such issuer; and
(vig) a current ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable survey with respect to the title company Real Property of Hidel Partners and does deliver such certificate Borrower to be subject to the title company Mortgage by acceptable registered land surveyors certified by such surveyor to enable it to issue a title policy (1) removing all exceptions which would otherwise have been raised by Lender and the title insurance company as a result indicating length and bearing of exterior boundary lines, measurements of the absence distance between buildings and boundary lines, locations of fences, drives, utility and other easements, encroachments, any existing building, ingress and egress, and such other items as Lender requires and with a new survey for such real property and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be requiredlegal description.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 2 contracts
Samples: Loan and Security Agreement (Inverness Medical Innovations Inc), Loan and Security Agreement (Ivc Industries Inc)
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, The Collateral Agent shall have received from Borrower (in form and each applicable Guarantor:substance reasonably satisfactory to the Commitment Parties):
(i) fully executed and notarized Mortgages, Mortgages encumbering the fee interest of the Credit Parties in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in real property asset owned by a Credit Party set forth on Schedule 3.1(g4.01(k)(i) (each, each a “Mortgaged Property” and collectively, the “Mortgaged Properties”), together with all related title documents (if any)such UCC-1 financing statements or similar notices as the Collateral Agent shall reasonably deem appropriate with respect to each such Mortgaged Property;
(ii) ALTA or other appropriate form mortgagee title insurance policies (the “Mortgage Policies”) issued by First American National Title Insurance Company (the “Title Insurance Company”), in an opinion amount reasonably satisfactory to the Commitment Parties with respect to each Mortgaged Property, which amount shall not exceed the fair market value for each such Mortgaged Property, assuring the Commitment Parties that the applicable Mortgages create valid and enforceable first priority mortgage liens on the respective Mortgaged Property, free and clear of counsel (all Liens except Permitted Liens, which counsel Mortgage Policies shall contain such endorsements as shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction Commitment Parties and such for any other matters as Collateral Agent that the Commitment Parties may reasonably request, in each case and providing affirmative insurance and such reinsurance as the Commitment Parties may reasonably request, all of the foregoing in form and substance reasonably satisfactory to Collateral Agentthe Commitment Parties;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts if requested by the Credit Commitment Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and the Mortgage Policies;
(Biv) such evidence satisfactory to Collateral Agent that such Credit Party has paid the Commitment Parties as the Commitment Parties reasonably may request to the title company or to the appropriate governmental authorities all expenses and premiums effect that each of the title company Mortgaged Properties, and the uses of the Mortgaged Properties, are in compliance in all other sums required in connection material respects 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 each Mortgaged Property in the appropriate real estate recordsapplicable Laws;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United StatesProperty, which Flood Certificate shall (xi) be addressed to the Collateral Agent Agent, (ii) be completed by a company which has certified the accuracy of the information contained therein, and (yiii) otherwise comply with the Flood Program; (B) evidence describing whether the community in which each Mortgaged Property is located participates in the Flood Program; (C) if the any Flood Certificate states that such a Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment acknowledgement of receipt of written notification from the Collateral Agent (xi) as to the existence of each such Mortgaged Property Property, and (yii) as to whether the community in which each such Mortgaged Property is located is participating in the Flood Program; and (CD) if such any Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that (i) covers any Mortgaged Property that is located in compliance a Flood Zone, (ii) is written in an amount reasonably acceptable to the Collateral Agent or the maximum limit of coverage made available with all applicable requirements respect to the particular type of property under the Flood Program, whichever is less, and (iii) has a term ending not later than the sixth-anniversary of the Closing Date; and
(vi) ALTA surveys of all Mortgaged Properties located in a form sufficient to allow the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it Title Insurance Company to issue the Mortgage Policies without a title policy (1) removing all exceptions which would otherwise have been raised by the title company as a result of the absence of a new standard survey for such real property and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be requiredexception.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 1 contract
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral The Agent shall have received from Borrower received, in form and each applicable Guarantorsubstance satisfactory to the Agent:
(i) fully executed Mortgage Instruments encumbering the fee interest (and notarized Mortgages, the leasehold interests in proper form for recording the case of the Leased Properties) of any Credit Party in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Mortgaged Property identified on Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any3.19(a);
(ii) an opinion in the case of counsel the leasehold interests in the Leased Properties, (a) such estoppel letters, consents and waivers from the landlord on such real property as may be required by the Agent, which counsel estoppel letters shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel Agent and (2b) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (eachapplicable lease, a “Title Policy”), in amounts not less than the fair market value memorandum of each Mortgaged Property, together with a title report issued by a title company lease with respect thereto, dated not more than thirty days prior to the Closing Date and copies or other evidence of all recorded documents listed as exceptions to title or otherwise referred to therein, each such lease in form and substance reasonably satisfactory to Collateral the Agent, has been or will be recorded in all places to the extent necessary or desirable, in the reasonable judgment of the Agent, so as to enable the Mortgage Instrument encumbering such leasehold interest to effectively create a valid and enforceable first priority lien (subject to Permitted Liens) on such leasehold interest in favor of the Agent (or such other Person as may be required or desired under local law) for the benefit of Lenders;
(iii) ALTA mortgagee title insurance policies issued by Chicago Title Insurance Company (the "Mortgage Policies"), in amounts reasonably satisfactory to the Agent with respect to any particular Mortgaged Property, assuring the Agent that each of the Mortgage Instruments creates a valid and enforceable first priority mortgage lien on the applicable Mortgaged Property (other than the Mortgaged Property located in Columbus, Georgia, which mortgage shall be a junior lien), free and clear of all defects and encumbrances except Permitted Liens, which Mortgage Policies shall be in form and substance reasonably satisfactory to the Agent and shall provide for affirmative insurance and such reinsurance as the Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Agent;
(iv) evidence as to (A) whether any Mortgaged Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a "Flood Hazard Property") and (B) evidence satisfactory to Collateral 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 each if any Mortgaged Property is a Flood Hazard Property, (1) whether the community in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located is participating in a the National Flood ZoneInsurance Program, (2) the Borrower’s applicable Credit Party's written acknowledgment of receipt of written notification from the Collateral Agent (xa) as to the existence of fact that such Mortgaged Property is a Flood Hazard Property and (yb) as to whether the community in which each Mortgaged such Flood Hazard Property is located is participating in the National Flood ProgramInsurance Program and (3) copies of insurance policies or certificates of insurance of the Borrower and its Subsidiaries evidencing flood insurance satisfactory to the Agent and naming the Agent as sole loss payee on behalf of the Lenders;
(v) maps or plats of an as-built survey of the sites of the Mortgaged Properties certified to the Agent and the Title Insurance Company in a manner reasonably satisfactory to them, dated a date satisfactory to each of the Agent and the Title Insurance Company by an independent professional licensed land surveyor reasonably satisfactory to each of the Agent and the Title Insurance Company, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception contained in the applicable title policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such maps, plats or surveys the following: (A) the locations on such sites of all the buildings, structures and other improvements and the established building setback lines; (B) the lines of streets abutting the sites and width thereof; (C) all access and other easements appurtenant to the sites necessary to use the sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to the surveyor; (E) any encroachments on any adjoining property by the building structures and improvements on the sites; and (CF) if the site is described as being on a filed map, a legend relating the survey to said map. To the extent any such Mortgaged Property is located in a Flood Zone and is located in a community that participates in surveys are not available on the Flood ProgramAmendment No. 5 Effective Date, evidence that the Borrower has obtained a policy Credit Parties shall have an additional period of flood insurance that is in compliance with all applicable requirements of ninety (90) days commencing on the Flood ProgramAmendment No. 5 Effective Date to deliver such surveys to the Agent; and
(vi) ALTA surveys evidence satisfactory to the Agent that each of the Mortgaged Properties, and the uses of the Mortgaged Properties, are in compliance in all material respects with all applicable laws, regulations and ordinances including without limitation health and environmental protection laws, erosion control ordinances, storm drainage control laws, doing business and/or licensing laws, zoning laws (the evidence submitted as to zoning should include the zoning designation made for each of the Mortgaged Properties, the permitted uses of each such Mortgaged Properties located in the United States which are under such zoning designation and zoning requirements as to parking, lot size, ingress, egress and building setbacks) and laws regarding access and facilities for disabled persons including, but not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g)limited to, the Collateral Agent federal Architectural Barriers Act, the Fair Housing Amendments Act of 1988, the Rehabilitation Act of 1973 and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions Americans with Disabilities Act of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby1990.
Appears in 1 contract
Samples: Credit Agreement (Galey & Lord Inc)
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, The Collateral Agent shall have received from Borrower (in form and each applicable Guarantor:substance satisfactory to the Collateral Agent):
(i) fully executed and notarized Mortgages, Mortgages encumbering the fee interest of the Loan Parties in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “the Mortgaged Property”)Properties, together with all related title documents (if any)such UCC-1 financing statements or similar notices as the Collateral Agent shall reasonably deem appropriate with respect to each such Mortgaged Property;
(ii) American Land Title Association or other appropriate form mortgagee title insurance policies (the “Mortgage Policies”) issued by a title insurance company reasonably satisfactory to the Collateral Agent (the “Title Insurance Company”), in an opinion amount satisfactory to the Collateral Agent with respect to each Mortgaged Property, which amount shall not exceed the fair market value for each such Mortgaged Property, assuring the Collateral Agent that the applicable Mortgages create valid and enforceable first priority mortgage liens on the respective Mortgaged Property, free and clear of counsel (all defects and encumbrances except Permitted Encumbrances, which counsel Mortgage Policies shall contain such endorsements as shall be reasonably satisfactory to the Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction Agent and such for any other matters as that the Collateral Agent may reasonably request, in each case and providing affirmative insurance and such reinsurance as the Collateral Agent may request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent;
(iii) maps or plats of an as-built survey of the sites of the Mortgaged Properties certified to the Collateral Agent and the Title Insurance Company in a manner reasonably satisfactory to them, dated a date satisfactory to the Collateral Agent and the Title Insurance Company by an independent professional licensed land surveyor reasonably satisfactory to the Collateral Agent and the Title Insurance Company, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception contained in the case applicable Mortgage Policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of each Leasehold Property that is a Material Real Estate Asset located in the United States foregoing, there shall be surveyed and shown on such maps, plats or in another jurisdiction where surveys the documents set forth in this clause following: (g)(iiiA) are reasonably customarythe locations on such sites of all the buildings, then structures and other improvements and the established building setback lines; (B) the lines of streets abutting the sites and width thereof; (C) all access and other easements appurtenant to the extent available after sites necessary to use the use sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of commercially reasonable efforts the sites or otherwise known to the surveyor; (E) any encroachments on any adjoining property by the Credit Parties, (1) a Landlord Consent building structures and Estoppel improvements on the sites; and (2F) evidence that such Leasehold Property if the site is described as being on a Recorded Leasehold Interestfiled map, a legend relating the survey to said map;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements if requested by the Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (eachAgent, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate recordsmortgaged properties;
(v) (A) certification from a completed Flood Certificate with respect to each Mortgaged Property located registered engineer or land surveyor in the United States, which Flood Certificate shall (x) be addressed a form reasonably satisfactory to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from or other evidence acceptable to the Collateral Agent that none of the improvements on the Mortgaged Properties are located within any area designated by the Director of the Federal Emergency Management Agency as a “special flood hazard” area or if any improvements on the Mortgaged Properties are located within a “special flood hazard” area, evidence of a flood insurance policy (xif such insurance is required by applicable Law) as from a company and in an amount satisfactory to the existence of such Mortgaged Property and (y) as to whether Collateral Agent for the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements portion of the Flood Programpremises, naming the Collateral Agent, for the benefit of the Lenders, as mortgagee; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified evidence reasonably satisfactory to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent that each of the Mortgaged Properties, and the Borrower agree to exclude Real Estate Assets from uses of the Collateral and the Borrower shall not be required to deliver any MortgagesMortgaged Properties, opinions of counsel, Title Polices and surveys, if, are in each case, as reasonably determined by the Collateral Agent compliance in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders therebyall material respects with all applicable Laws.
Appears in 1 contract
Samples: Credit Agreement (Fairchild Corp)
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, The Collateral Agent shall have received from Borrower (in form and each applicable Guarantor:substance satisfactory to the Collateral Agent):
(i) fully executed and notarized Mortgagesmortgages, deeds of trust or deeds to secure debt (each a "MORTGAGE" and, collectively, the "MORTGAGES") encumbering the fee interest of the Loan Parties in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(greal property asset owned by a Loan Party set forth on SCHEDULE 4.01(I) (eacheach a "MORTGAGED PROPERTY" and, a “Mortgaged Property”collectively, the "MORTGAGED PROPERTIES"), together with all related title documents (if any)such UCC-1 financing statements or similar notices as the Collateral Agent shall reasonably deem appropriate with respect to each such Mortgaged Property;
(ii) ALTA or other appropriate form mortgagee title insurance policies (the "MORTGAGE POLICIES") issued by a title insurance company satisfactory to the Collateral Agent (the "TITLE INSURANCE COMPANY"), in an opinion amount reasonably satisfactory to the Collateral Agent with respect to each Mortgaged Property, which amount shall not exceed the fair market value for each such Mortgaged Property, assuring the Collateral Agent that the applicable Mortgages create valid and enforceable first priority mortgage liens on the respective Mortgaged Property, free and clear of counsel (all defects and encumbrances except Permitted Encumbrances, which counsel Mortgage Policies shall contain such endorsements as shall be reasonably satisfactory to the Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction Agent and such for any other matters as that the Collateral Agent may reasonably request, in each case and providing affirmative insurance and such reinsurance as the Collateral Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Collateral Agent;
(iii) maps or plats of an as-built survey of the sites of the Mortgaged Properties certified to the Collateral Agent and the Title Insurance Company in a manner reasonably satisfactory to them, dated a date reasonably satisfactory to the Collateral Agent and the Title Insurance Company by an independent professional licensed land surveyor reasonably satisfactory to the Collateral Agent and the Title Insurance Company, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception contained in the case applicable Mortgage Policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1999, and, without limiting the generality of each Leasehold Property that is a Material Real Estate Asset located in the United States foregoing, there shall be surveyed and shown on such maps, plats or in another jurisdiction where surveys the documents set forth in this clause following: (g)(iiiA) are reasonably customarythe locations on such sites of all the buildings, then structures and other improvements and the established building setback lines; (B) the lines of streets abutting the sites and width thereof; (C) all access and other easements appurtenant to the extent available after sites necessary to use the use sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of commercially reasonable efforts the sites or otherwise known to the surveyor; (E) any encroachments on any adjoining property by the Credit Parties, (1) a Landlord Consent building structures and Estoppel improvements on the sites; and (2F) evidence that such Leasehold Property if the site is described as being on a Recorded Leasehold Interestfiled map, a legend relating the survey to said map;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements if requested by the Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (eachAgent, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate recordsmortgaged properties;
(v) (A) certification from a completed Flood Certificate with respect to each Mortgaged Property located registered engineer or land surveyor in the United States, which Flood Certificate shall (x) be addressed a form reasonably satisfactory to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from or other evidence acceptable to the Collateral Agent that none of the improvements on the Mortgaged Properties are located within any area designated by the Director of the Federal Emergency Management Agency as a "special flood hazard" area or if any improvements on the Mortgaged Properties are located within a "special flood hazard" area, evidence of a flood insurance policy (xif such insurance is required by applicable Law) as from a company and in an amount satisfactory to the existence of such Mortgaged Property and (y) as to whether Collateral Agent for the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements portion of the Flood Programpremises, naming the Collateral Agent, for the benefit of the Lenders, as mortgagee; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified evidence reasonably satisfactory to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent that each of the Mortgaged Properties, and the Borrower agree to exclude Real Estate Assets from uses of the Collateral and the Borrower shall not be required to deliver any MortgagesMortgaged Properties, opinions of counsel, Title Polices and surveys, if, are in each case, as reasonably determined by the Collateral Agent compliance in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders therebyall material respects with all applicable Laws.
Appears in 1 contract
Real Property Collateral. In With respect to any Material Real Property, the Administrative Agent shall have received, in form and substance satisfactory to the Administrative Agent and the Lenders a Mortgage, duly executed by the appropriate Loan Party, together with: (i) evidence that counterparts of such Mortgage has been duly executed, acknowledged and delivered and is in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary or desirable in order to create a valid 103 first and subsisting Lien on the property described therein in favor of Collateral Agent, the Administrative Agent for the benefit of the Secured PartiesParties and that all filing, documentary, stamp, intangible and recording taxes and other fees in connection therewith have been paid, (ii) a valid andfully paid American Land Title Association Lender’s Extended Coverage title insurance policy, subject to or equivalent in any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, other applicable Collateral Agent shall have received from Borrower and each applicable Guarantor:
Jurisdiction (i) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a the “Mortgaged PropertyMortgage Policy”), together with endorsements and in amounts acceptable to the Administrative Agent, issued, coinsured and reinsured by title insurers acceptable to the Administrative Agent, insuring the Mortgages to be valid first and subsisting Liens on the property described therein, free and clear of all related title documents Liens, other than Liens permitted by Section 7.01, and providing for such other affirmative insurance and such coinsurance (if any);
or reinsurance with direct access) as the Administrative Agent may deem necessary or desirable, (iiiii) an opinion American Land Title Association/National Society of counsel Professional Engineers form survey, or equivalent in any other applicable Collateral Jurisdiction, for which all necessary fees (which counsel shall be reasonably where applicable) have been paid, and dated no more than thirty (30) days before the day of the initial Credit Extension, certified to the Administrative Agent and the issuer of the Mortgage Policy in a manner satisfactory to Collateral Agent) the Administrative Agent by a land surveyor duly registered and licensed in each state or the jurisdiction in which a Mortgaged the Material Real Property is located and acceptable to the Administrative Agent, showing all buildings and other improvements, any off- site improvements, the location of any easements, parking spaces, rights of way, building set-back lines and other dimensional regulations and the absence of encroachments, either by such improvements or on to such property, and other defects, other than encroachments and other defects acceptable to the Administrative Agent, (iv) if the Material Real Property is a leasehold property, (1) an estoppel and consent agreement duly executed by the lessor of such leased Material Real Property, (2) a memorandum of lease in recordable form with respect to such leasehold interest, executed and acknowledged by the enforceability owner of Mortgages the affected real property, as lessor, and (3) evidence that the applicable lease with respect to be such leasehold interest or a memorandum thereof has been recorded in all places necessary or desirable, in the Administrative Agent’s reasonable judgment, to give constructive notice to third-party purchasers of such state or jurisdiction leasehold interest, (v) evidence of the insurance required by the terms of Section 6.07, (vi) a completed “Life-of-Loan” Federal Emergency Management Agency Standard Flood Hazard Determination, and, if such Material Real Property is located in a special flood hazard area, (1) a notice to (and such other matters confirmations of receipt by) the Borrower as Collateral Agent may reasonably requestto the existence of a special flood hazard and, if applicable, the availability of flood hazard insurance under the National Flood Insurance Program and (2) evidence of applicable flood insurance, if available, in each case in form such form, on such terms and substance reasonably satisfactory to Collateral Agent;
in such amounts as required by the Flood Insurance Laws or as otherwise required by the Lenders; (iiivii) in the case an appraisal of each Leasehold Property that is a such Material Real Estate Asset located in Property complying with the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral Agent that such Credit Party has paid to the title company or to the appropriate governmental authorities all expenses and premiums requirements of the title company Federal Financial Institutions Reform, Recovery and all Enforcement Act of 1989, or equivalent in any 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 each Mortgaged Property in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the applicable Collateral Agent and (y) otherwise comply with the Flood ProgramJurisdiction; (Bviii) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment an opinion of receipt of written notification from the Collateral Agent (x) local counsel as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements enforceability of the Flood ProgramMortgage and such other matters reasonably requested by the Administrative Agent; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 1 contract
Samples: Credit Agreement (Babcock & Wilcox Enterprises, Inc.)
Real Property Collateral. In order Cause to create in favor of Collateral be delivered to the Agent, for in form and substance satisfactory to the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall have received from Borrower and each applicable GuarantorAgent:
(i) a fully executed and notarized Mortgagesmortgage, deed of trust, deed to secure debt or hypothec in proper registerable form for recording (the "New Fee Mortgage") encumbering the fee interest (whether legal, equitable or otherwise) of Plastofilm Industries, Inc. in all appropriate places the fee estate (or the equivalent form of title under applicable law) located in all applicable jurisdictionsWheaton, encumbering each Real Estate Asset listed in Schedule 3.1(g) Illinois (each, a “Mortgaged the "Wheaton Property”"), together with all related title documents such UCC-1 financing statements (or equivalent instruments) as the Agent shall deem appropriate with respect to the Wheaton Property;
(ii) a fully executed and notarized mortgage, deed of trust or deed to secure debt (the "New Leasehold Mortgage;" the New Leasehold Mortgage and the New Fee Mortgage are collectively referred to as the "New Mortgages") encumbering the leasehold interest of Plastofilm Industries, Inc. in the leasehold estate located in Sparks, Nevada (the "Sparks Property;" the Sparks Property and the Wheaton Property are collectively referred to as the "New Real Properties"), together with such UCC-1 financing statements (or equivalent instruments) as the Agent shall deem appropriate with respect to the Sparks Property; provided that the New Leasehold Mortgage and UCC-1 financing statements (or equivalent instruments) shall not be required for the Sparks Property if anythe lease prohibits the same and the landlord or any other required party thereunder has not consented to the same after good faith efforts to obtain the same by the Credit Parties (for purposes of this subsection, good faith efforts shall not be deemed to include the filing of lawsuits or the payment of any consideration);
(iiiii) unless in any such case the Credit Parties are unable after good faith efforts to obtain the same (for purposes of this subsection, good faith efforts shall not be deemed to include the filing of lawsuits or the payment of any consideration) (A) in the case of the Sparks Property and the leasehold estate located in Batavia, Illinois, such estoppel letters, consents and waivers from the landlords of such real property as may be reasonably required by the Agent, which estoppel letters shall be in form and substance reasonably satisfactory to the Agent and (B) in the case of the Sparks Property, evidence that the applicable lease, a memorandum of lease with respect thereto, or other evidence of such lease in form and substance reasonably satisfactory to the Agent, has been recorded in all places to the extent necessary or desirable, in the reasonable judgment of the Agent, so as to enable the New Leasehold Mortgage to effectively create a valid and enforceable lien (subject only to Permitted Liens) on the Sparks Property in favor of the Agent (or such other Person as may be required or desired under local law) for the benefit of Lenders;
(iv) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral the Agent) in each the state or jurisdiction province in which a Mortgaged each New Real Property is located with respect to the enforceability of Mortgages the form of the New Mortgage and sufficiency of the form of UCC-1 financing statements (or equivalent instruments) to be recorded or filed in such state or jurisdiction province and such other matters as Collateral the Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral the Agent;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (Av) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor (the "New Mortgage Policies") issued by one or more title companies reasonably Chicago Title Insurance Company (the "Title Insurance Company"), in amounts satisfactory to Collateral the Agent with respect to all New Real Properties, assuring the Agent that each Mortgaged Property located in applicable New Mortgage creates valid and enforceable mortgage liens on the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged respective New Real Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date free and copies clear of all recorded documents listed as exceptions to title or otherwise referred to thereindefects and encumbrances except Permitted Liens, each which New Mortgage Policies shall be in form and substance satisfactory to the Agent and containing such endorsements as shall be satisfactory to the Agent and for any other matters that the Agent may request, and shall provide for affirmative insurance and such reinsurance as the Agent may request, all of the foregoing in form and substance satisfactory to the Agent;
(vi) maps or plats of an as-built survey of the Wheaton Property certified to the Agent and the Title Insurance Company in a manner reasonably satisfactory to Collateral them, dated a date satisfactory to the Agent and (B) evidence the Title Insurance Company by an independent professional licensed land surveyor reasonably satisfactory to Collateral the Agent that such Credit Party has paid and the Title Insurance Company, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception contained in the applicable title company or to policy and be made in accordance with the appropriate governmental authorities all expenses Minimum Standard Detail Requirements for Land Title Surveys jointly established and premiums adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the title company foregoing, there shall be surveyed and all other sums required in connection with shown on such maps, plats or surveys 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 each Mortgaged Property in the appropriate real estate records;
(v) following: (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United Stateslocations on such sites of all the buildings, which Flood Certificate shall (x) be addressed to structures and other improvements and the Collateral Agent and (y) otherwise comply with the Flood Programestablished building setback lines; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, lines of streets abutting the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent sites and width thereof; (xC) as all access and other easements appurtenant to the existence sites necessary to use the sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of such Mortgaged Property the sites or otherwise known to the surveyor; (E) any encroachments on any adjoining property by the building structures and (y) as to whether improvements on the community in which each Mortgaged Property is located is participating in the Flood Programsites; and (CF) if such Mortgaged Property the site is located described as being on a filed map, a legend relating the survey to said map;
(vii) zoning letters from appropriate authorities in a Flood Zone form and is located in a community substance acceptable to the Agent or other evidence satisfactory to the Agent that participates in each of the Flood ProgramNew Real Properties, evidence that and the Borrower has obtained a policy uses of flood insurance that is the New Real Properties, are in compliance in all material respects with all applicable requirements zoning laws, including the zoning designation made for each of the Flood ProgramNew Real Properties, the permitted uses of each such New Real Properties under such zoning designation and zoning requirements as to parking, lot size, ingress, egress and building setbacks; and
(viviii) ALTA surveys of all Mortgaged Properties located certification from Bankers Hazard Determination Services or Borrower's land surveyor in a form reasonably satisfactory to the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit or other evidence acceptable to the title Agent that none of the improvements on the New Real Properties are located within any area designated by the Director of the Federal Emergency Management Agency as a "special flood hazard" area or if any improvements on the New Real Properties are located within a "special flood hazard" area, evidence of a flood insurance policy from a company and does deliver such certificate in an amount satisfactory to the title company to enable it to issue a title policy (1) removing all exceptions which would otherwise have been raised by Agent for the title company as a result applicable portion of the absence premises, naming the Agent, for the benefit of a new survey for such real property and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each caseLenders, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders therebymortgagee.
Appears in 1 contract
Real Property Collateral. In order the event that the Borrower desires to create include the Real Property Availability in favor the calculation of Collateral the Fixed Asset Borrowing Base, the Borrower shall deliver written notice thereof to the Administrative Agent, for which notice shall be accompanied by the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall have received from Borrower and each applicable Guarantorfollowing:
(ia) fully The Mortgage duly executed and notarized Mortgages, by the Borrower encumbering the Borrower's fee interest in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each the Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any)Property Collateral;
(iib) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee A title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in commitment (the United States (each, a “"Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report Insurance Commitment") issued by a title company with respect thereto, dated not more than thirty days prior acceptable to the Closing Date Administrative Agent in the amount, of one hundred percent (100%) of the appraised value of the Real Property Collateral and copies of all recorded documents listed in such form as is acceptable to the Administrative Agent insuring that the Mortgage is a valid first priority Lien on the Borrower's interest in the Real Property Collateral subject only to such exceptions to title as shall be reasonably acceptable to the Administrative Agent and containing such endorsements and affirmative insurance as the Administrative Agent may require, and true copies of each document, instrument or otherwise referred certificate required by the terms of such policy and the Mortgage to thereinbe filed, each recorded, executed or delivered in connection therewith;
(c) Duly executed Uniform Commercial Code financing statements under the applicable Uniform Commercial Code, or other filings under Applicable Law, to be filed in connection with the Mortgage in form and substance reasonably satisfactory to Collateral the Administrative Agent and to perfect the Lien created by the Mortgage;
(Bd) evidence satisfactory to Collateral Agent that such Credit Party has paid A current survey (including flood plain certification) of the real property encumbered by the Mortgage, certified to the title company or company, the Lender Group and each of their successors and assigns, in form and content satisfactory to the appropriate governmental authorities all expenses Administrative Agent and premiums of prepared by a professional and properly licensed land surveyor satisfactory to 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 each Mortgaged Property in the appropriate real estate recordsAdministrative Agent;
(ve) (A) a completed Flood Certificate A local counsel opinion with respect to each Mortgaged Property located the Mortgage in the United States, which Flood Certificate shall (x) be addressed form and substance satisfactory to the Collateral Agent and Administrative Agent;
(yf) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community in which The Environmental Indemnity Agreement duly executed by each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood ProgramParty; and
(vig) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold PropertiesThe Phase I Environmental Site Assessment Report dated May 8, certified to Collateral Agent provided that2003, if the applicable Borrower is able to obtain a “no change” affidavit acceptable and performed by XXXXX International Incorporated with respect to the title company and does deliver such certificate to the title company to enable it to issue Real Property Collateral, together with a title policy (1) removing all exceptions which would otherwise have been raised by the title company as a result reliance letter in favor of the absence of a new survey for such real property and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, ifLender Group, in each case, satisfactory in all respects to the Administrative Agent, together with copies of all existing environmental reviews and audits and other information pertaining to actual or potential environmental claims as the Administrative Agent may reasonably determined require. Real Property Availability shall automatically be included in the calculation of the Fixed Asset Borrowing Base upon receipt by the Collateral Borrower of a notice from the Administrative Agent in writingof the receipt of, and satisfaction with, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders therebydocuments required by this Section 6.21.
Appears in 1 contract
Real Property Collateral. (a) In the event that any Credit Party owns or acquires Real Property (other than any Real Property constituting Excluded Property), then such Credit Party, no later than ninety (90) days (or such longer period as may be agreed in writing by Agent in its sole discretion) after acquiring such Real Property shall take all such actions and execute and deliver, or cause to be executed and delivered, all such Mortgages, documents, instruments, agreements, opinions and certificates similar to those described in clause (b) immediately below that Agent shall reasonably request to create in favor of Agent a valid and, subject to any filing and/or recording referred to herein, enforceable Lien on, and security interest in such Real Property. Agent may, in its reasonable judgment, grant extensions of time for compliance or exceptions with respect to the provisions of this Section 6.8 by any Credit Party. In addition to the foregoing, the applicable Credit Party shall, at the reasonable request of Agent, deliver, from time to time, to Agent such appraisals as are required by law or regulation of Real Property with respect to which Agent has been granted a Lien.
(b) In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority enforceable Lien on, and security interest in, any Real Property Collateral that is prior and superior in certain Real Estate Assetsright to any other Lien (other than Permitted Encumbrances), Collateral Agent shall have received from Borrower and each applicable GuarantorBorrowers with respect to such Real Property Collateral:
(i) a fully executed and notarized MortgagesMortgage, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each such Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any)Property Collateral;
(ii) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged such Real Property is located with respect to the enforceability of Mortgages the form of Mortgage to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”)) with respect to such Real Property, in amounts not less than the fair market value of each Mortgaged such Real Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date thereto and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence reasonably satisfactory to Collateral Agent that such Credit Party has Boxxxxxx xas paid to the title company or to the appropriate governmental authorities Governmental Bodies all expenses and premiums of the title company and all other sums required in connection with the issuance of each Title Policy and all applicable recording and stamp taxes (including mortgage recording and intangible taxes) payable in connection with recording the Mortgages Mortgage for each Mortgaged such Real Property Collateral in the appropriate real estate records;
(iv) a recently issued flood zone determination certificate;
(v) (A) a completed Flood Certificate evidence of flood insurance with respect to each Mortgaged Flood Hazard Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the National Flood Insurance Program, evidence that the Borrower has obtained a policy of flood insurance that is in each case in compliance with all any applicable requirements regulations of the Flood ProgramBoard of Governors of the Federal Reserve System, in form and substance reasonably satisfactory to Agent;
(vi) if an exception to the Title Policy with respect to any Real Property subject to a Mortgage would arise without such ALTA surveys, ALTA surveys of such Real Property; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent reports and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, ifother reasonable information, in each caseform, as scope and substance reasonably determined by the Collateral Agent in writingsatisfactory to Agent, the cost of obtaining or perfecting a security interest is excessive in relation regarding environmental matters relating to the benefit afforded to the Lenders therebysuch Real Property Collateral.
Appears in 1 contract
Samples: Term Loan and Security Agreement (Direct Digital Holdings, Inc.)
Real Property Collateral. In order (a) Subject to create the limitations provided in favor Section 6.18(b), within 45 days of Collateral Agent's written request therefor, for each Borrower shall accomplish the benefit following, in each case to the reasonable satisfaction of the Secured Parties, a valid and, subject Agent pursuant to any filing and/or recording referred such documentation as may be acceptable to herein, perfected First Priority security interest Agent in certain Real Estate Assets, Collateral Agent shall have received from Borrower and each applicable Guarantorits sole discretion:
(i) fully executed grant, or shall cause the applicable Guarantor to grant, to Agent for the ratable benefit of itself and notarized Mortgagesthe other Lenders a valid, in proper form for recording perfected Lien in all appropriate places in all applicable jurisdictionsor any portion of the Real Property so designated by Agent, encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any)which Lien shall have such priority as may be required by Agent;
(ii) an opinion of counsel (which counsel shall be provide Agent with title insurance from a nationally recognized title company reasonably satisfactory acceptable to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect , insuring that title to the enforceability applicable Real Property Collateral is vested in fee simple in Borrower or the applicable Guarantor, subject only to such title exceptions as may be acceptable to Lender in its sole discretion (including applicable Permitted Liens as of Mortgages to be recorded in the date of such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agentgrant);
(iii) execute and deliver one or more Mortgages with respect to the designated Real Property Collateral, which Mortgage(s) shall be in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents form and substance satisfactory to Agent and as otherwise set forth in this clause (g)(iii) are reasonably customary, then Exhibits R-1 and R-2 hereto as the same may be revised to reflect applicable requirements or customary practices of the extent available after jurisdiction in which the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold applicable Real Property is a Recorded Leasehold Interestsituated;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral deliver to Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (eachsuch environmental reports, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Propertyindemnities and evaluations as Lender may require, together with a title report issued letters indicating that such reports and evaluations may be relied upon by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and the Lenders (B) evidence satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate recordsevent previously prepared reports and evaluations are found acceptable by Agent);
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements deliver an acceptable survey of the Flood Programapplicable Real Property Collateral certified to Lender; and
(vi) ALTA surveys deliver such further and additional items as Agent may reasonably require.
(b) The requirements of all Mortgaged Properties located Section 6.18(a) shall not apply with respect to any effected Real Property to the extent: (i) the granting of a subordinate and junior Lien would result in a default or event of default pursuant to one or more agreements in effect as of the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if date of this Agreement and granting a Permitted Lien in such Real Property; and (ii) the applicable Borrower is able or Guarantor has been unable to obtain a “no change” affidavit acceptable consent in form and substance satisfactory to Agent after the title company and does deliver application of such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be requiredBorrower's or Guarantor's best efforts.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 1 contract
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral The Administrative Agent shall have received from Borrower received, in form and each applicable Guarantorsubstance reasonably satisfactory to the Administrative Agent:
(i) fully executed and notarized Mortgagesmortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) deeds of trust or deeds to secure debt (each, as the same may be amended, modified, restated or supplemented from time to time, a “Mortgaged Property”), together with all related title documents "MORTGAGE INSTRUMENT" and collectively the "MORTGAGE INSTRUMENTS") encumbering the fee interest in the properties listed in SCHEDULE 3.19
(if anya) as properties owned by the Credit Parties (each a "MORTGAGED PROPERTY" and collectively the "MORTGAGED PROPERTIES");
(ii) an opinion a title report obtained by the Credit Parties in respect of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a of the Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral AgentProperties;
(iii) in the case of with respect to each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customaryMortgaged Property, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) current form ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in Lawyers Title Insurance Corporation (the United States (each, a “Title Policy”"MORTGAGE POLICIES"), in amounts not less than the fair market value of each respective amounts designated in SCHEDULE 3.19
(a) with respect to any particular Mortgaged Property, together with assuring the Administrative Agent that each of the Mortgage Instruments creates a title report issued by a title company with respect theretovalid and enforceable first priority mortgage lien on the applicable Mortgaged Property, dated not more than thirty days prior to the Closing Date free and copies clear of all recorded documents listed defects and encumbrances except Permitted Liens, shall provide for affirmative insurance and such reinsurance as exceptions to title or otherwise referred to thereinthe Administrative Agent may reasonably request, each all of the foregoing in form and substance reasonably satisfactory to Collateral Agent the Administrative Agent;
(iv) evidence as to (A) whether any Mortgaged Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a "FLOOD HAZARD PROPERTY") and (B) evidence satisfactory to Collateral 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 each if any Mortgaged Property is a Flood Hazard Property, (1) whether the community in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located is participating in a the National Flood ZoneInsurance Program, (2) the Borrower’s applicable Credit Party's written acknowledgment of receipt of written notification from the Collateral Administrative Agent (xa) as to the existence of fact that such Mortgaged Property is a Flood Hazard Property and (yb) as to whether the community in which each Mortgaged such Flood Hazard Property is located is participating in the National Flood Program; Insurance Program and (C3) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that copies of insurance policies or certificates of insurance of the Borrower has obtained a policy of and its Subsidiaries evidencing flood insurance that is in compliance with all applicable requirements reasonably satisfactory to the Administrative Agent and naming the Administrative Agent as sole loss payee on behalf of the Flood ProgramLenders; and
(viv) ALTA maps or plats of an as-built survey of the sites of the Mortgaged Properties certified to the Administrative Agent and Lawyers Title Insurance Corporation in a manner reasonably satisfactory to them, dated a date satisfactory to each of the Administrative Agent and Lawyers Title Insurance Corporation by an independent professional licensed land surveyor reasonably satisfactory to each of the Administrative Agent and Lawyers Title Insurance Corporation, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception contained in the applicable title policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such maps, plats or surveys the following: (A) the locations on such sites of all Mortgaged Properties located in the United States which are not Leasehold Propertiesbuildings, certified structures and other improvements and the established building setback lines; (B) the lines of streets abutting the sites and width thereof; (C) all access and other easements appurtenant to Collateral Agent provided thatthe sites necessary to use the sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to the surveyor; (E) any encroachments on any adjoining property by the building structures and improvements on the sites; and (F) if the applicable Borrower site is able described as being on a filed map, a legend relating the survey to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be requiredsaid map.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 1 contract
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral The Agent shall have received from Borrower received, in form and each applicable Guarantorsubstance reasonably satisfactory to the Agent:
(i) fully executed and notarized Mortgagesmortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) deeds of trust or deeds to secure debt (each, as the same may be amended, modified, restated or supplemented from time to time, a “"Mortgage Instrument" and collectively the "Mortgage Instruments") encumbering the fee interest of any Credit Party in each real property asset identified on Schedule 6.19
(a) (each a "Mortgaged Property”), together with all related title documents (if any" and collectively the "Mortgaged Properties");
(ii) an opinion of counsel ALTA mortgagee title insurance policies (which counsel shall be reasonably the "Mortgage Policies") issued by title insurers satisfactory to Collateral Agentthe Agent (the "Title Insurance Company") in an amount satisfactory to the Agent, assuring the Agent that each state or jurisdiction in which of the Mortgage Instruments creates a valid and enforceable first priority mortgage lien on the applicable Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral the Agent;.
(iii) in the case an as-built survey of each Leasehold Property that is a Material Real Estate Asset located in of the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then Mortgaged Properties certified to the extent available after Agent and the use of commercially reasonable efforts Title Insurance Company in a manner satisfactory to them, dated a date satisfactory to the Agent and the Title Insurance Company by an independent professional licensed land surveyor reasonably satisfactory to the Agent and the Title Insurance Company, which the surveys shall be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the Credit Parties, American Land Title Association and the American Congress on Surveying and Mapping in 1992 (1) a Landlord Consent or such alternative standards as are satisfactory to the Agent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interestthe Title Insurance Company);
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent a current certification from a registered engineer or unconditional commitments therefor issued by one land surveyor or more title companies reasonably satisfactory other evidence acceptable to Collateral the Agent with respect to each Mortgaged Property as to whether any of the improvements on such Mortgaged Property are located within any area designated by the Director of the Federal Emergency Management Agency as a "special flood hazard" area and if any improvements on the Mortgaged Properties are located within a "special flood hazard" area, evidence of a flood insurance policy from a company and in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior an amount satisfactory to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral Agent that such Credit Party has paid to for the title company or to the appropriate governmental authorities all expenses and premiums applicable portion of the title company and all other sums required in connection with premises, naming 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 each Mortgaged Property in the appropriate real estate recordsAgent, as mortgagee;
(v) (A) a completed Flood Certificate with respect to current appraisal of each Mortgaged Property located in prepared for the United Statesbenefit of the Agent by a qualified appraiser satisfactory to the Agent and dated a date satisfactory to the Agent, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in indicate a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community in which fair market value for each Mortgaged Property is located is participating acceptable to the Agent and which shall otherwise be in form and substance satisfactory to the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood ProgramAgent; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable evidence satisfactory to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements Agent that would otherwise have been included had a new survey been obtainedeach Mortgaged Property, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral uses of each Mortgaged Property, are in compliance in all material respects with all applicable laws, regulations and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders therebyordinances.
Appears in 1 contract
Samples: Credit Agreement (Pluma Inc)
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral The Administrative Agent shall have received from Borrower received, in form and each applicable Guarantorsubstance satisfactory to the Administrative Agent:
(i) fully executed and notarized Mortgagesmortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) deeds of trust or deeds to secure debt (each, as the same may be amended, modified, restated or supplemented from time to time, a “"Mortgage Instrument" and collectively the "Mortgage Instruments") encumbering the fee interest and/or ground leasehold interest of any Loan Party in each real property interest of the Loan Parties (each such real property is a "Mortgaged Property”), together with " and collectively all related title documents (if anysuch real property is the "Mortgaged Properties");
(ii) an opinion in the case of counsel each ground real property leasehold interest of any Loan Party constituting Mortgaged Property, (a) such estoppel letters, consents and waivers from the landlords on such Mortgaged Property as may be required by the Administrative Agent, which counsel estoppel letters shall be in the form and substance reasonably satisfactory to Collateral Agentthe Administrative Agent and (b) in each state or jurisdiction in which evidence that the applicable lease, a Mortgaged Property is located memorandum of lease with respect to the enforceability thereto, or other evidence of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case lease in form and substance reasonably satisfactory to Collateral the Administrative Agent, has been or will be recorded in all places to the extent necessary or desirable, in the reasonable judgment of the Administrative Agent, so as to enable the Mortgage Instrument encumbering such ground leasehold interest to effectively create a valid and enforceable first priority lien (subject to Permitted Liens) on such ground leasehold interest in favor of the Administrative Agent (or such other Person as may be required or desired under local law) for the benefit of Lenders;
(iii) an as-built survey of each of the sites of those Mortgaged Properties that are set forth on Schedule 5.01(g) hereto, certified to the Administrative Agent and the Title Insurance Company in a manner reasonably satisfactory to each of the Administrative Agent and the Title Insurance Company, dated a date reasonably satisfactory to each of the Administrative Agent and the Title Insurance Company by an independent professional licensed land surveyor, which surveys shall be sufficient to delete any standard printed survey exception contained in the case of each Leasehold Property that is a Material Real Estate Asset located applicable title policy and be made in accordance with the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the Credit PartiesAmerican Land Title Association and the American Congress on Surveying and Mapping in 1999 with all items from Table A thereof completed, (1) a Landlord Consent except for Nos. 5 and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest12;
(iv) ALTA (Aor equivalent) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor (the "Mortgage Policies") issued by one or more a title companies insurance company reasonably satisfactory to Collateral the Administrative Agent (the "Title Insurance Company") with respect to each Mortgaged Property located in Property, assuring the United States (each, Administrative Agent that each of the Mortgage Instruments creates a “Title Policy”), in amounts not less than valid and enforceable first priority mortgage lien on the fair market value of each applicable Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date free and copies clear of all recorded documents listed as exceptions to title or defects and encumbrances except Permitted Liens, which Mortgage Policies shall otherwise referred to therein, each be in form and substance reasonably satisfactory to Collateral the Administrative Agent and (B) evidence shall be in amounts satisfactory to Collateral the Administrative Agent that and shall include such Credit Party has paid to coverages, endorsements and reinsurance as are reasonably requested by 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 each Mortgaged Property in the appropriate real estate recordsAdministrative Agent;
(v) evidence as to (A) a completed Flood Certificate with respect to each whether any Mortgaged Property located is in an area designated by the United States, which Federal Emergency Management Agency as having special flood or mud slide hazards (a "Flood Certificate shall (xHazard Property") be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if any Mortgaged Property is a Flood Hazard Property, (1) whether the Flood Certificate states that community in which such Mortgaged Property is located is participating in a the National Flood ZoneInsurance Program, (2) the Borrower’s applicable Loan Party's written acknowledgment of receipt of written notification from the Collateral Administrative Agent (xa) as to the existence of fact that such Mortgaged Property is a Flood Hazard Property and (yb) as to whether the community in which each Mortgaged such Flood Hazard Property is located is participating in the National Flood Program; Insurance Program and (C3) copies of insurance policies or certificates of insurance of the Consolidated Parties evidencing flood insurance satisfactory to the Administrative Agent and naming the Administrative Agent as sole loss payee on behalf of the Lenders;
(vi) evidence in the form of appropriate reliance letters reasonably satisfactory to the Administrative Agent that each of the Mortgaged Properties, and the uses of the Mortgaged Properties, are in compliance in all material respects with all applicable zoning laws, regulations, ordinances and requirements (the evidence submitted as to which should include the zoning designation made for each of the Mortgaged Properties, the permitted uses of each such Mortgaged Properties under such zoning designation and, if such available, zoning requirements as to parking, lot size, ingress, egress and building setbacks);
(vii) a legal opinion of special local counsel for the Loan Parties for each state in which any Mortgaged Property is located in a Flood Zone form and is located in a community that participates in substance reasonably acceptable to the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood ProgramAdministrative Agent; and
(viviii) ALTA surveys of all Mortgaged Properties located letters in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable form and substance satisfactory to the title company and does deliver such certificate Administrative Agent which provide adequate assurances that the Lenders may rely on the environmental assessments of each Mortgaged Property that were previously delivered to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be requiredAdministrative Agent.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 1 contract
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral The Administrative Agent shall have received from Borrower and each applicable Guarantor:
(i) fully executed and notarized Mortgagesreceived, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any);
(ii) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral the Administrative Agent:
(i) a fully executed and notarized deed of trust and security agreement (as the same may be amended, modified, restated or supplemented from time to time, the "Mortgage Instrument") encumbering the Land and the Improvements, the leasehold interest of the Borrower in the Tipp Property, the personal property and fixtures more particularly described therein and the transferable development rights and low income housing credits or other such credits described therein;
(ii) a survey of the Land and the Tipp Property certified to the Administrative Agent, the Borrower and the Title Insurance Company in a manner reasonably satisfactory to each of the Administrative Agent and the Title Insurance Company, dated a date reasonably satisfactory to each of the Administrative Agent and the Title Insurance Company by an independent professional licensed land surveyor, which survey shall show all boundaries of the Land and the Tipp Property with courses and distances indicated and be sufficient to delete any standard printed survey exception contained in the applicable title policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such survey the following: (A) the locations on such sites of all the buildings, structures and other improvements and the established building setback lines; (B) the lines of streets abutting the sites and width thereof; (C) all access and other easements appurtenant to the sites necessary to use the sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to the surveyor; and (E) any encroachments on any adjoining property by the building structures and improvements on the sites;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then evidence as to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested whether the Land and the Tipp Property are in an area designated by Collateral Agent the Federal Emergency Management Agency as having special flood or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States mud slide hazards (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged "Flood Hazard Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date ") and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Land and the Tipp Property is located in are a Flood ZoneHazard Property, (1) whether the community in which the Land and the Tipp Property are located is participating in the National Flood Insurance Program, (2) the Borrower’s 's written acknowledgment of receipt of written notification from the Collateral Administrative Agent (xa) as to the existence of such Mortgaged fact that the Land and the Tipp Property are a Flood Hazard Property and (yb) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Hazard Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.is
Appears in 1 contract
Samples: Credit Agreement (Nordstrom Inc)
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral The Agent shall have received from Borrower and each applicable Guarantor:
(i) fully executed and notarized Mortgagesreceived, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any);
(ii) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral the Agent:
(i) with respect to each of the Real Properties designated in Part I of Schedule 6.33, fully executed and notarized (A) Mortgage Instruments or Assignments of Mortgages, as applicable, and (B) Assignments of Leases or Assignments of Assignments of Leases, in each case in recordable form and encumbering any interest of any Credit Party in such Real Properties;
(iiiii) in the case of each Leasehold real property leasehold interest of any Credit Party constituting Mortgaged Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (eachapplicable lease, a “Title Policy”), in amounts not less than the fair market value memorandum of each Mortgaged Property, together with a title report issued by a title company lease with respect thereto, dated not more than thirty days prior to the Closing Date and copies or other evidence of all recorded documents listed as exceptions to title or otherwise referred to therein, each such lease in form and substance reasonably satisfactory to Collateral the Agent, can, upon the request of the Lenders pursuant to Section 7.20, be properly recorded in all places to the extent necessary or desirable, in the reasonable judgment of the Agent, so as to enable the Mortgage Instrument encumbering such leasehold interest to effectively create a valid and enforceable first priority lien (subject to Permitted Liens and required landlord consents) on such leasehold interest in favor of the Agent (or such other Person as may be required or desired under local law) for the benefit of Lenders;
(iii) maps or plats of an as-built survey of the sites of the real property covered by the Mortgage Instruments;
(iv) evidence of title insurance policies issued with respect to each of the Mortgaged Properties (the "Mortgage Policies"), along with title update letters for each policy dated as of a date later than thirty (30) days prior to the date hereof, such policies to be in amounts not less than the respective amounts designated in Part I of Schedule 6.33 with respect to any particular Mortgaged Property; and
(v) evidence as to (A) whether any Mortgaged Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a "Flood Hazard Property") and (B) evidence satisfactory to Collateral 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 each if any Mortgaged Property is a Flood Hazard Property, (1) whether the community in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located is participating in a the National Flood ZoneInsurance Program, (2) the Borrower’s applicable Credit Party's written acknowledgment of receipt of written notification from the Collateral Agent (xa) as to the existence of fact that such Mortgaged Property is a Flood Hazard Property and (yb) as to whether the community in which each Mortgaged such Flood Hazard Property is located is participating in the National Flood Program; Insurance Program and (C3) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in copies of insurance policies or certificates of insurance of the Flood Program, evidence that the Borrower has obtained a policy of Combined Parties evidencing flood insurance that is in compliance with all applicable requirements satisfactory to the Agent and naming the Agent as sole loss payee on behalf of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain Lenders under a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be requiredstandard mortgagee endorsement.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 1 contract
Samples: Credit and Reimbursement Agreement (CNL American Properties Fund Inc)
Real Property Collateral. In order to create in favor of Receipt by the applicable Collateral Agent, for the benefit Agent of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall have received from Borrower and each applicable Guarantorfollowing:
(i) fully executed and and, to the extent required, notarized MortgagesMortgages encumbering the fee interest and/or leasehold interest of any Loan Party (and, in proper form for recording in all appropriate places in all applicable jurisdictionswith respect to certain properties, encumbering the title interest of any nominee of the Canadian Borrower) in each Real Estate Asset listed in of the real properties designated as a Mortgaged Property on Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any)6.20;
(ii) an opinion in the case of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which real property leasehold interest of any Loan Party constituting Mortgaged Property, evidence that the applicable lease, a Mortgaged Property is located memorandum of lease with respect to the enforceability thereto, notice of Mortgages to be recorded in lease or other evidence of such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case lease in form and substance reasonably satisfactory to the applicable Collateral Agent, has been or will be recorded or registered in all places to the extent necessary or desirable, in the reasonable judgment of the applicable Collateral Agent, so as to enable the Mortgage encumbering such leasehold interest to effectively create a valid and enforceable first priority lien (subject to Permitted Liens) on such leasehold interest in favor of the applicable Collateral Agent (or such other Person as may be required or desired under local law) for the benefit of applicable Lenders;
(iii) any existing maps or plats of an as-built survey of any Mortgaged Property in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then form and substance satisfactory to the extent available after applicable Collateral Agent and the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interesttitle insurance company referred to in Section 5.01(g)(iv);
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent (or unconditional commitments therefor the Canadian equivalent) issued by one or more a title companies insurance company reasonably satisfactory acceptable to the applicable Collateral Agent with respect to each Mortgaged Property located in Property, assuring the United States (each, applicable Collateral Agent that each of the Mortgages creates a “Title Policy”), in amounts not less than valid and enforceable first priority mortgage lien on the fair market value of each applicable Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date free and copies clear of all recorded documents listed as exceptions to defects and encumbrances except Permitted Liens, which title or insurance policies shall otherwise referred to therein, each be in form and substance reasonably satisfactory to the applicable Collateral Agent and (B) evidence satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate records;Agent; and
(v) evidence as to (A) a completed Flood Certificate with respect to each whether any Mortgaged Property located in the United States, which States is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a “Flood Certificate shall (xHazard Property”) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if any Mortgaged Property located in the United States is a Flood Certificate states that Hazard Property, (1) whether the community in which such Mortgaged Property is located is participating in a the National Flood ZoneInsurance Program, (2) the Borrowerapplicable Loan Party’s written acknowledgment of receipt of written notification from the Domestic Collateral Agent Agent, (xa) as to the existence of fact that such Mortgaged Property is a Flood Hazard Property and (yb) as to whether the community in which each Mortgaged such Flood Hazard Property is located is participating in the National Flood Program; Insurance Program and (C3) if such Mortgaged Property is located in a Flood Zone copies of insurance policies or certificates of insurance of GGC and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of its Subsidiaries evidencing flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified satisfactory to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and naming the Borrower agree to exclude Real Estate Assets from the applicable Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each caseAgent, as reasonably determined by sole Lender’s loss payee on behalf of the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders therebyapplicable Lenders.
Appears in 1 contract
Real Property Collateral. In order The Collateral Agent shall have received:
(i) with respect to create each Mortgaged Property encumbered by a Mortgage under the Fourth Amended and Restated Credit Agreement:
(1) an amendment thereof (each a “Mortgage Amendment”) duly executed and acknowledged by the applicable Loan Party, and in form for recording in the recording office where each 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; and
(2) with respect to each Mortgage Amendment, opinions of local counsel to the Loan Parties, which opinions (x) shall be addressed to each Agent and each of the Lenders and be dated the Fifth ARCA Effective Date, (y) shall cover the enforceability of the respective Mortgage as amended by the Mortgage Amendment and such other matters incident to the transactions contemplated herein as the Administrative Agent may reasonably request and (z) shall be in form and substance reasonably satisfactory to the Agents.
(ii) with respect to each Mortgaged Property not encumbered by a Mortgage under the Fourth Amended and Restated Credit Agreement:
(1) a Mortgage encumbering each Mortgaged Property in favor of the Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to duly executed and acknowledged by each Loan Party that is the owner of or holder of any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assetssuch Mortgaged Property, Collateral Agent shall have received from Borrower and each applicable Guarantor:
(i) fully executed and notarized Mortgages, otherwise in proper form for recording in all appropriate places in all the recording office of each applicable jurisdictions, encumbering political subdivision where each Real Estate Asset listed in Schedule 3.1(g) (each, a “such Mortgaged Property”)Property is situated, together with all related title documents (if any);
(ii) an opinion of counsel (which counsel such certificates, affidavits, questionnaires or returns as shall be reasonably satisfactory required in connection with the recording or filing thereof to Collateral Agent) in each state or jurisdiction in which create a Mortgaged Property is located with respect to the enforceability lien under applicable Requirements of Mortgages to be recorded in such state or jurisdiction Law, and such financing statements and any other matters as Collateral Agent may reasonably requestinstruments necessary to grant a mortgage lien under the laws of any applicable jurisdiction, in each case all of which shall be in form and substance reasonably satisfactory to Collateral Agent; and
(2) with respect to each Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as necessary to consummate the Transactions or as shall reasonably be deemed necessary by the Collateral Agent in order for the owner or holder of the fee or leasehold interest constituting such Mortgaged Property to grant the Lien contemplated by the Mortgage with respect to such Mortgaged Property;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are evidence reasonably customary, then acceptable to the extent available after Collateral Agent of payment by Borrower of all search and examination charges, escrow charges and related charges, mortgage recording taxes, fees, charges, costs and expenses required for the use recording of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent Mortgages and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;Mortgage Amendments referred to above; and
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property, each Company shall have made all notifications, registrations and filings, to the extent required by, and in accordance with, all Governmental Real Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Disclosure Requirements applicable to such Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 1 contract
Real Property Collateral. In order to create in favor of Collateral AgentWithin ninety (90) days after the Issue Date (or as soon as practical thereafter using commercially reasonable efforts), for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall have received from Borrower received, in form and each applicable Guarantorsubstance substantially similar to those delivered to the First Lien Agent in connection with the creation of a first priority, perfected Lien on such Real Property in accordance with the Credit Agreement:
(i) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, Mortgage Instrument encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “the Mortgaged Property”), together with all related title documents (if any)Properties as to properties owned by the Pledgors;
(ii) maps or plats of an opinion as-built survey of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) the sites of the Mortgaged Properties; it being agreed that the surveys in each state or jurisdiction in which a Mortgaged Property is located with respect existence on the Issue Date and provided to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case pursuant to the terms of this clause (ii) (along with a certificate of an officer of the Issuer in form and substance reasonably substantially similar to that delivered to the First Lien Agent in connection with the creation of a first priority, perfected Lien on such Real Property in accordance with the Credit Agreement) are satisfactory so long as substantially similar to Collateral Agentthe surveys delivered to the First Lien Agent under the Credit Agreement;
(iii) an environmental questionnaire executed by an officer of the Issuer with respect to all owned Mortgaged Properties, along with third-party environmental reviews of all owned Mortgaged Properties, including but not limited to Phase I environmental assessments; it being agreed that the Phase I environmental assessments in existence on the case Issue Date and provided to the Administrative Agent pursuant to the terms of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iiiiii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interestsatisfactory;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies extent delivered to the First Lien Agent in connection with the creation of all recorded documents listed as exceptions a first priority, perfected Lien on such Mortgaged Properties in accordance with the Credit Agreement, opinions of counsel to title or otherwise referred to therein, the Pledgors for each jurisdiction in which the Mortgaged Properties are located in form and substance reasonably satisfactory substantially similar to Collateral Agent and (B) evidence satisfactory to Collateral Agent that such Credit Party has paid those delivered 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 each Mortgaged Property in the appropriate real estate records;First Lien Agent; and
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zoneextent available, the Borrower’s written acknowledgment of receipt of written notification zoning letters from the Collateral Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community each municipality or other governmental authority for each jurisdiction in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be requiredlocated.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 1 contract
Samples: Second Lien Security Agreement (Carrols Restaurant Group, Inc.)
Real Property Collateral. In order to create in favor of Collateral AgentUpon request from Lender, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent Borrower shall have received from Borrower and each applicable Guarantorprovide Lender with:
(ia) fully executed and notarized Mortgages, in proper form mortgagee title insurance policies for recording in all appropriate places in all applicable jurisdictions, encumbering the Real Property Collateral issued by a title insurance company reasonably satisfactory to Lender (each Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged PropertyMortgage Policy” and, collectively, the “Mortgage Policies”)) in amounts satisfactory to Lender assuring Lender that the Mortgage on such Real Property Collateral is a valid and enforceable first priority mortgage Lien on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, together the legal description and endorsements with all related title documents (if any);
(ii) an opinion of counsel (which counsel respect thereto shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to Lender, and the enforceability of Mortgages to Mortgage Policies otherwise shall be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral AgentLender;
(iiib) in the case an opinion of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customarycounsel to Borrower, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Lender indicating, among other things, that the mortgage Lien on such Real Property Collateral Agent constitutes a valid and enforceable mortgage Lien on such Real Property Collateral;
(Bc) evidence an updated survey, in form and substance satisfactory to Collateral Agent Lender and certified to Lender and its insurers by such surveyor to be correct and accurate and containing (i) legal and metes and bounds descriptions of the Real Property Collateral, certified by such surveyor, containing only such encroachments, exceptions and state of facts as are set forth in the Mortgage Policy acceptable to Lender; and
(d) such other agreements, instruments or other documents and information as Lender may request in order to perfect and protect its Lien on the Real Property Collateral; provided, that Lender agrees that it will only record the Mortgage and request the items set forth in clauses (a) through (d) above if (i) an Event of Default has occurred and is continuing, (ii) the total amount of outstanding Advances and Letters of Credit is equal to or exceeds $7,500,000, or (iii) the Projections delivered pursuant to Section 6.3(c) show that at any time during the Fiscal Year covered by such Projections the outstanding Advances and Letters of Credit Party has paid will equal or exceed $7,500,000. Lender hereby is expressly authorized by Borrower to the title company or to the appropriate governmental authorities (i) charge any and all amounts payable, and 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 incurred, in connection with recording the Mortgages for each Mortgaged Property in Mortgage, obtaining the appropriate real estate records;
Mortgage Policy, and all related matters (vincluding, without limitation, any and all mortgage recording tax, intangible tax and documentary stamp tax and all title insurance premiums) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent Loan Account, and (yii) otherwise comply with the Flood Program; (B) if the Flood Certificate states that designate such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) amounts as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be requiredan Advance.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 1 contract
Samples: Loan and Security Agreement (Lazy Days R.V. Center, Inc.)
Real Property Collateral. In order to create in favor of Collateral Upon request from the Agent, for the benefit of Company shall provide the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall have received from Borrower and each applicable Guarantorwith:
(ia) fully executed and notarized Mortgages, in proper form mortgagee title insurance policies for recording in all appropriate places in all applicable jurisdictions, encumbering the Real Property Collateral issued by a title insurance company reasonably satisfactory to the Agent (each Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged PropertyMortgage Policy” and, collectively, the“Mortgage Policies”)) in amounts satisfactory to the Agent assuring the Agent that the Mortgage on such Real Property Collateral is a valid and enforceable first priority mortgage Lien on such Real Property Collateral free and clear of all defects and encumbrances except Permitted Liens, together the legal description and endorsements with all related title documents (if any);
(ii) an opinion of counsel (which counsel respect thereto shall be reasonably satisfactory to Collateral the Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to , and the enforceability of Mortgages to Mortgage Policies otherwise shall be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral the Agent;
(iiib) in the case an opinion of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then counsel to the extent available after the use of commercially reasonable efforts by the Credit PartiesCompany, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Lenders indicating, among other things, that the mortgage Lien on such Real Property Collateral constitutes a valid and enforceable mortgage Lien on such Real Property Collateral;
(c) an updated survey, in form and substance satisfactory to Lenders and certified to the Agent and (B) evidence satisfactory the Lenders and its insurers by such surveyor to Collateral Agent that be correct and accurate and containing legal and metes and bounds descriptions of the Real Property Collateral, certified by such Credit Party has paid surveyor, containing only such encroachments, exceptions and state of facts as are set forth in the Mortgage Policy acceptable to the title company Lenders; and
(d) such other agreements, instruments or other documents and information as the Agent may request in order to perfect and protect its Lien on the Real Property Collateral; provided, that the Agent agrees that it will only record the Mortgage and request the items set forth in clauses (a) through (d) above if (i) an Event of Default has occurred and is continuing, (ii) the total amount of outstanding advances and Letter of Credit Usage under the Revolving Loan is equal to or exceeds $7,500,000, or (iii) the any projections delivered to the appropriate governmental authorities Lenders by the Company show that at any time during the Fiscal Year covered by those projections the outstanding advances and Letter of Credit Usage will equal or exceed $7,500,000. The Company expressly authorizes the Agent and the Lenders to (i) charge any and all amounts payable, and 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 incurred, in connection with recording the Mortgages for each Mortgaged Property in Mortgage, obtaining the appropriate real estate records;
Mortgage Policy, and all related matters (vincluding, without limitation, any and all mortgage recording tax, intangible tax and documentary stamp tax and all title insurance premiums) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent Revolving Credit, and (yii) otherwise comply with designate such amounts as an advance under the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be requiredRevolving Credit.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 1 contract
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit Each of the Secured PartiesMortgages relating to the Real Property constituting the Real Property Collateral shall have been duly executed by the parties thereto and delivered to the Collateral Agent and shall be in full force and effect, a valid and, (ii) title searches shall indicate that the subject Real Property Collateral is not subject to any Lien other than those permitted under Section 10.2 hereto or the Collateral Agent has received evidence reasonably satisfactory to it that any such existing Lien will be released on the Closing Date, (iii) each of such Security Documents shall have been filed and recorded in the appropriate recording office in the jurisdiction in which the Real Property Collateral is located or shall have been delivered to the Collateral Agent or a nationally recognized title insurance company in a proper form for filing, recordation or registration in form and substance acceptable to the Collateral Agent as a first priority lien on such Real Property Collateral (subject only to any Lien permitted by Section 10.2) and, upon filing and/or recording referred to hereinor recordation, perfected First Priority security interest as applicable, in certain Real Estate Assetsconnection therewith where filed or recorded, as applicable, the Collateral Agent shall have received from Borrower evidence reasonably satisfactory to it of each such filing or recordation and each applicable Guarantor:
(iiv) fully executed and notarized Mortgagesthe Collateral Agent shall have re- ceived such other documents, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, including a “Mortgaged Property”)policy or policies of title insurance issued by a nationally recognized title insurance company, together with all related title documents (if any);
(ii) an opinion of counsel (which counsel shall such endorsements, coinsurance and reinsurance as may be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Lenders, insuring the Mortgages as valid first priority liens on the Real Estate Assets from the Collateral Property Collateral, free of Liens other than those permitted under Section 10.2, together with such surveys, abstracts, appraisals and the Borrower shall not be legal opinions required to deliver any Mortgages, opinions be furnished pursuant to the terms of counsel, Title Polices and surveys, if, in each case, the Mortgages or as reasonably determined requested by the Collateral Agent in writing, or the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders therebyLenders.
Appears in 1 contract
Real Property Collateral. In order The Administrative Agent shall have received, in form and substance reasonably satisfactory to create the Administrative Agent: (i) fully executed counterparts of Mortgages (each a "Mortgage Instrument" and, collectively, the "Mortgage Instruments") on the Real Properties identified on Schedule 5.01(d) in form and substance reasonably satisfactory to the Administrative Agent, which are necessary or, in the reasonable opinion of the Administrative 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 Liens) in favor of Collateral Agent, the Administrative Agent (or such other trustee as may be required or desired under local law) for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall have received from Borrower and each applicable Guarantor:
(i) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any);
(ii) an opinion other than as noted on Schedule 5.01(d), copies of counsel all existing ALTA surveys of each of the Mortgaged Properties by registered engineers or land surveyors in the possession of the Borrower, (which counsel shall be reasonably iii) copies of all existing appraisals of the Mortgaged Properties in the possession of the Loan Parties, (iv) access upon request to copies of all material existing environmental reports and other material environmental documentation, if any, relating to the Mortgaged Properties in the possession of the Borrower, (v) evidence satisfactory to Collateral Agentthe Administrative Agent that counterparts of each Mortgage Instrument have been delivered to the title company insuring the mortgage liens for recording, (vi) in other than as noted on Schedule 5.01(d), either endorsements to the existing Mortgage Policies or new Mortgage Policies assuring the Administrative Agent that each state or jurisdiction in which Mortgage Instrument creates a valid and enforceable first priority mortgage lien on the respective Mortgaged Property, free and clear of all defects, encumbrances (except for Permitted Encumbrances) and liens (except for Permitted Liens), (vii) evidence as to (x) whether any Mortgaged Property is located with respect to in an area designated by the enforceability of Mortgages to be recorded in such state Federal Emergency Management Agency as having flood or jurisdiction mud slide hazards (a "Flood Hazard Property") and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent;
(iiiy) in the case of each Leasehold if any Mortgaged Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit PartiesFlood Hazard Property, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located whether the community in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located is participating in a the National Flood Zone, Insurance Program and (2) the Borrower’s applicable Loan Party's written acknowledgment of receipt of written notification from the Collateral Administrative Agent (xa) as to the existence of fact that such Mortgaged Property is a Flood Hazard Property and (yb) as to whether the community in which each Mortgaged such Flood Hazard Property is located is participating in the National Flood Program; Insurance Program and (Cviii) if such Mortgaged Property is located in a Flood Zone from local counsel satisfactory to the Administrative Agent, opinions each of which (x) shall be addressed to the Administrative Agent, the Administrative Agent and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements each of the Flood Program; and
Lenders, (viy) ALTA surveys of all Mortgaged Properties located shall be in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable form and substance reasonably satisfactory to the title company Administrative Agent and does deliver such certificate (z) shall cover the perfection of security interests granted pursuant to the title company to enable it to issue a title policy (1) removing all exceptions which would otherwise have been raised by the title company as a result of the absence of a new survey for Mortgage Instruments and such real property and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation other matters incident to the benefit afforded to transactions contemplated herein as the Lenders therebyAdministrative Agent may reasonably request.
Appears in 1 contract
Samples: Credit Agreement (Biltmore Surgery Center Holdings Inc)
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, The Collateral Agent shall have received from Borrower received, in form and each applicable Guarantorsubstance reasonably satisfactory to the Collateral Agent:
(i) (A) fully executed and notarized mortgages, deeds of trust or deeds to secure debt and/or (B) fully executed and notarized amendments to existing mortgages, deeds of trust or deeds to secure debt of record in favor of the Collateral Agent, as appropriate, (each such mortgage, deed of trust and deed to secure debt and each existing mortgage, deed of trust and deed to secure debt of record as amended by the amendments, as appropriate, referenced above shall be referred to herein as a "Mortgage" and collectively as "Mortgages, in proper form ") for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in real property asset owned by a Credit Party as set forth on Schedule 3.1(g5.1(e)(i) (each, each of those real property assets on Schedule 5.1(e)(i) being a “"Mortgaged Property”" and collectively the "Mortgaged Properties"), together with all related title documents (if any)such UCC-1 or UCC-3 financing statements, as appropriate, as the Collateral Agent shall deem appropriate with respect to each such Mortgaged Property;
(ii) (A) fully executed and notarized leasehold mortgages, deeds of trust or deeds to secure debt and/or (B) fully executed and notarized amendments to existing leasehold mortgages, deeds of trust or deeds to secure debt, as appropriate, (each such leasehold mortgage, deed of trust and deed to secure debt and each existing leasehold mortgage, deed of trust and deed to secure debt of record as amended by the amendments, as appropriate, referenced above, a "Leasehold Mortgage" and collectively the "Leasehold Mortgages") for each leasehold interest of a Credit Party set forth on Schedule 5.1(e)(ii) (each a "Leasehold Mortgaged Property" and collectively the "Leasehold Mortgaged Properties"), together with such UCC-1 or UCC-3 financing statements, as appropriate, as the Collateral Agent shall deem appropriate with respect to such Leasehold Mortgaged Properties and evidence that each leasehold estate set forth on Schedule 5.1(e)(ii) is in the name of a Credit Party;
(iii) ALTA or other appropriate form mortgagee title insurance policies (the "Mortgage Policies") issued by Chicago Title Insurance Company or other title insurers satisfactory to the Collateral Agent (the "Title Insurance Company"), in an amount satisfactory to the Collateral Agent with respect to each Mortgaged Property and each Leasehold Mortgaged Property (collectively, the "Title Properties"), which amount shall not exceed the fair market value for each such Title Property, assuring the Collateral Agent that the applicable Mortgages or Leasehold Mortgages, as applicable, create valid and enforceable first priority mortgage liens on the respective Title Properties, free and clear of all defects and encumbrances except Permitted Liens which Mortgage Policies shall be in form and substance reasonably satisfactory to the Collateral Agent and containing such endorsements as shall be reasonably satisfactory to the Collateral Agent and for any other matters that the Collateral Agent may request, and providing affirmative insurance and such reinsurance as the Collateral Agent may request, all of the foregoing in form and substance reasonably satisfactory to the Agents;
(iv) to the extent not previously delivered to the Collateral Agent, maps or plats of an as-built survey of the sites of the Title Properties certified to the Collateral Agent and the Title Insurance Company in a manner reasonably satisfactory to them, dated a date satisfactory to the Collateral Agent and the Title Insurance Company by an independent professional licensed land surveyor reasonably satisfactory to the Collateral Agent and the Title Insurance Company, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception contained in the applicable title policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such maps, plats or surveys the following: (A) the locations on such sites of all the buildings, structures and other improvements and the established building setback lines; (B) the lines of streets abutting the sites and width thereof; (C) all access and other easements appurtenant to the sites necessary to use the sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to the surveyor; (E) any encroachments on any adjoining property by the building structures and improvements on the sites; and (F) if the site is described as being on a filed map, a legend relating the survey to said map;
(v) an opinion of counsel (which counsel shall be reasonably satisfactory to the Collateral Agent) in each the state or jurisdiction in which a each Mortgaged Property and Leasehold Mortgaged Property is located with respect to the enforceability of the Mortgages and Leasehold Mortgages, standard remedies with respect thereto, and sufficiency of the form of UCC-1 and/or UCC-3 financing statements to be recorded or filed in such state or jurisdiction and such other matters as the Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Collateral AgentAgent (with respect to any Mortgage or Leasehold Mortgage which is being amended in connection with this Credit Agreement, counsel shall opine that such Mortgage or Leasehold Mortgage (together with all amendments thereto) is enforceable against the respective Credit Party);
(iiivi) to the extent not previously delivered to the Collateral Agent, zoning letters from appropriate authorities in form and substance acceptable to the case Collateral Agent or other evidence satisfactory to the Collateral Agent that each of the Title Properties, and the uses of the Title Properties, are in compliance in all material respects with all applicable zoning laws, including the zoning designation made for each of the Title Properties, the permitted uses of each Leasehold Property such Title Properties under such zoning designation and zoning requirements as to parking, lot size, ingress, egress and building setbacks;
(vii) to the extent not previously delivered to the Collateral Agent, certification from Bankers Hazard Determination Services or Borrower's land surveyor in a form reasonably satisfactory to the Collateral Agent or other evidence acceptable to the Collateral Agent that is a Material Real Estate Asset none of the improvements on the Title Properties located in within the United States are located within any area designated by the Director of the Federal Emergency Management Agency as a "special flood hazard" area or if any improvements on the Title Properties are located within a "special flood hazard" area, evidence of a flood insurance policy from a company and in another jurisdiction where an amount satisfactory to the documents set forth in this clause Collateral Agent for the applicable portion of the premises, naming the Collateral Agent, for the benefit of the Lenders, as mortgagee;
(g)(iiiviii) are reasonably customary, then to the extent available after not previously delivered to the use of commercially reasonable efforts by the Credit PartiesCollateral Agent, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each the Mortgaged Properties located in Bridgeview, Illinois and Troy, Ohio, a fully executed and notarized modification of the existing mortgage or deed of trust in favor of the issuer of the applicable letter of credit securing the bond financing on such property, in form and substance acceptable to the Collateral Agent, which amends and modifies such mortgage or deed of trust to secure, among other things, the obligations of the Credit Parties under this Credit Agreement; and
(ix) to the extent not previously delivered to the Collateral Agent, with respect to the Mortgaged Property located in Grove City, Pennsylvania, (A) such estoppel letters, consents and waivers from the United States (each, a “Title Policy”), in amounts not less than owner of such Mortgaged Property and the fair market value holder of each any existing mortgage or deed of trust on such Mortgaged Property, together with a title report issued as may be reasonably required by a title company with respect theretothe Collateral Agent, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each which estoppel letters shall be in form and substance reasonably satisfactory to the Collateral Agent and (B) evidence satisfactory that the installment sale contract pursuant to Collateral Agent that such Credit Party has paid to which the title company or to the appropriate governmental authorities all expenses and premiums of the title company and all other sums required Borrower's interest 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 each Mortgaged Property in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located derived or a memorandum of such contract with respect thereto, or other evidence of such contract in form and substance reasonably satisfactory to the Collateral Agent, has been recorded in all places to the extent necessary or desirable, in the reasonable judgment of the Collateral Agent, so as to enable the Mortgage encumbering such Mortgaged Property to effectively create a Flood Zone, valid and enforceable lien (subject only to Permitted Liens) on the Borrower’s written acknowledgment 's rights and interests in such Mortgaged Property in favor of receipt of written notification from the Collateral Agent (x) or such other Person as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not may be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to desired under local law) for the benefit afforded to the Lenders therebyof Lenders.
Appears in 1 contract
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, The Collateral Agent shall have received from Borrower and each applicable Guarantor:
(i) fully executed and notarized Mortgagesreceived, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any);
(ii) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Collateral Agent:
(i) (A) fully executed and notarized mortgages, deeds of trust or deeds to secure debt and/or (B) fully executed and notarized amendments to existing mortgages, deeds of trust or deeds to secure debt of record in favor of the Collateral Agent, as appropriate, (each such mortgage, deed of trust and deed to secure debt and each existing mortgage, deed of trust and deed to secure debt of record as amended by the amendments, as appropriate, referenced above shall be referred to herein as a "Mortgage" and collectively as "Mortgages") for each real property asset owned by a Credit Party as set forth on Schedule 5.1(e)(i) (each of those real property assets on Schedule 5.1(e)(i) being a "Mortgaged Property" and collectively the "Mortgaged Properties"), together with such UCC-1 or UCC-3 financing statements, as appropriate, as the Collateral Agent shall deem appropriate with respect to each such Mortgaged Property;
(ii) (A) fully executed and notarized leasehold mortgages, deeds of trust or deeds to secure debt and/or (B) fully executed and notarized amendments to existing leasehold mortgages, deeds of trust or deeds to secure debt, as appropriate, (each such leasehold mortgage, deed of trust and deed to secure debt and each existing leasehold mortgage, deed of trust and deed to secure debt of record as amended by the amendments, as appropriate, referenced above, a "Leasehold Mortgage" and collectively the "Leasehold Mortgages") for each leasehold interest of a Credit Party set forth on Schedule 5.1(e)(ii) (each a "Leasehold Mortgaged Property" and collectively the "Leasehold Mortgaged Properties"), together with such UCC-1 or UCC-3 financing statements, as appropriate, as the Collateral Agent shall deem appropriate with respect to such Leasehold Mortgaged Properties and evidence that each leasehold estate set forth on Schedule 5.1(e)(ii) is in the name of a Credit Party;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States ALTA or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA other appropriate form mortgagee title insurance policies with all endorsements requested (the "Mortgage Policies") issued by Chicago Title Insurance Company or other title insurers satisfactory to the Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably (the "Title Insurance Company"), in an amount satisfactory to the Collateral Agent with respect to each Mortgaged Property located in and each Leasehold Mortgaged Property (collectively, the United States (each, a “"Title Policy”Properties"), in amounts which amount shall not less than exceed the fair market value of for each Mortgaged such Title Property, together with a title report issued by a title company with respect theretoassuring the Collateral Agent that the applicable Mortgages or Leasehold Mortgages, dated not more than thirty days prior to as applicable, create valid and enforceable first priority mortgage liens on the Closing Date respective Title Properties, free and copies clear of all recorded documents listed as exceptions to title or otherwise referred to therein, each defects and encumbrances except Permitted Liens which Mortgage Policies shall be in form and substance reasonably satisfactory to the Collateral Agent and (B) evidence containing such endorsements as shall be reasonably satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states for any other matters that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of such Mortgaged Property may request, and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.providing affirmative
Appears in 1 contract
Real Property Collateral. In order to create in favor Diamond shall grant a deed of Collateral Agent, trust lien or mortgage for the benefit of Lender covering the Secured PartiesReal Property Collateral, which at all times shall be maintained as a valid andfirst priority deed of trust lien or mortgage in favor of Lender, subject securing all of the Obligations, as provided in the Real Property Collateral Documents. Prior to funding under the Term Facility with respect to any filing and/or recording referred to hereinReal Property Collateral, perfected First Priority security interest in certain Real Estate AssetsDiamond shall provide Lender, Collateral Agent shall have received from Borrower and each applicable Guarantor:
at Borrower's expense, with (i) fully executed an environmental site assessment, prepared by a credentialed environmental site consultant acceptable to Lender and notarized Mortgagesin form satisfactory to Lender, in proper form for recording in all appropriate places in all applicable jurisdictionsconfirming to Lender the status of compliance with Environmental Requirements with respect to such Real Property Collateral, encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any);
(ii) an opinion a mortgagee's policy of counsel (which counsel shall be reasonably title insurance written by a title insurance company acceptable to Lender and in form satisfactory to Collateral AgentLender, containing no exceptions other than as are acceptable to Lender and (iii) a boundary survey, performed and certified to Lender by a credentialed registered surveyor acceptable to Lender, and in each state or jurisdiction form satisfactory to Lender. As promptly as possible, Lender shall obtain an updated appraisal of the Real Property Collateral, on a valuation basis acceptable to Lender, prepared by a credentialed appraiser acceptable to Lender, and complying with applicable law and in which a Mortgaged Property is located form satisfactory to Lender. Lender may obtain an updated appraisal with respect to the enforceability of Mortgages Real Property Collateral at such times as Lender may request in order to be recorded comply with applicable law or internal policy requirements. Diamond shall pay all reasonable costs and expenses incurred by Lender in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent and (B) evidence satisfactory to Collateral 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 obtaining any and all other sums required such updated appraisals."
3.11 Paragraph 3.10 ("Guaranty") hereby is amended and restated to read 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 each Mortgaged Property in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) its entirety as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.follows:
Appears in 1 contract
Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral The Administrative Agent shall have received from Borrower received, in form and each applicable Guarantorsubstance satisfactory to the Agents:
(i) fully executed and notarized Mortgagesmortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) deeds of trust or deeds to secure debt (each, as the same may be amended, modified, restated or supplemented from time to time, a “Mortgaged Property”), together with all related title documents (if any);"MORTGAGE INSTRUMENT" and collectively the "MORTGAGE INSTRUMENTS") encumbering the fee interest in the properties listed in SCHEDULE 3.19
(iia) an as properties owned by the Credit Parties and designated as a material property, other than real properties owned by the Acquired Company or its Subsidiaries (each a "MORTGAGED PROPERTY" and collectively the "MORTGAGED PROPERTIES") and a legal opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case the Mortgage Instruments in form and substance reasonably satisfactory to Collateral the Administrative Agent;
(ii) a title report obtained by the Credit Parties in respect of each of the Mortgaged Properties attached as SCHEDULE 4.2(f)(II) (each a "SIGNIFICANT MORTGAGED PROPERTY");
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Significant Mortgaged Property, together with a an ALTA or substantially equivalent mortgagee title report insurance policy issued by a title company acceptable to the Administrative Agent (the "MORTGAGE POLICIES"), in amounts acceptable to the Administrative Agent with respect theretoto any particular Significant Mortgaged Property, dated not more than thirty days prior to assuring the Closing Date Administrative Agent that each of the Mortgage Instruments creates a valid and copies enforceable first priority mortgage lien on the applicable Significant Mortgaged Property, free and clear of all recorded documents listed as exceptions to title or otherwise referred to thereindefects and encumbrances except Permitted Liens, each which Mortgage Policies shall be in form and substance reasonably satisfactory to Collateral the Administrative Agent and shall provide for affirmative insurance and such reinsurance as the Administrative Agent may reasonably request, all of the foregoing in form and substance reasonably satisfactory to the Administrative Agent;
(iv) evidence as to (A) whether any Mortgaged Property is in an area designated by the Federal Emergency Management Agency as having special flood or mud slide hazards (a "FLOOD HAZARD PROPERTY") and (B) evidence satisfactory to Collateral 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 each if any Mortgaged Property is a Flood Hazard Property, (1) whether the community in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located is participating in a the National Flood ZoneInsurance Program, (2) the Borrower’s applicable Credit Party's written acknowledgment of receipt of written notification from the Collateral Administrative Agent (xa) as to the existence of fact that such Mortgaged Property is a Flood Hazard Property and (yb) as to whether the community in which each Mortgaged such Flood Hazard Property is located is participating in the National Flood Program; Insurance Program and (C3) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that copies of insurance policies or certificates of insurance of the Borrower has obtained a policy of and its Subsidiaries evidencing flood insurance that is in compliance with all applicable requirements reasonably satisfactory to the Administrative Agent and naming the Administrative Agent as sole loss payee on behalf of the Flood ProgramLenders; and
(viv) ALTA surveys existing maps or plats of all an as-built survey of the sites of the Significant Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Administrative Agent and the Borrower agree Title Insurance Company in a manner reasonably satisfactory to exclude Real Estate Assets from them, dated a date satisfactory to each of the Collateral Administrative Agent and the Borrower Title Insurance Company by an independent professional licensed land surveyor reasonably satisfactory to each of the Administrative Agent and the Title Insurance Company, which maps or plats and the surveys on which they are based shall not be required (A) sufficient to deliver delete any Mortgages, opinions of counsel, standard printed survey exception contained in the applicable title policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Polices Surveys jointly established and surveys, if, in each case, as reasonably determined adopted by the Collateral Agent American Land Title Association and the American Congress on Surveying and Mapping in writing, the cost of obtaining 1992 or perfecting a security interest is excessive in relation (B) otherwise satisfactory to the benefit afforded to the Lenders therebyAdministrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Suiza Foods Corp)
Real Property Collateral. In order to create in favor of Collateral AgentWithin ninety (90) days after the Issue Date (or as soon as practical thereafter using commercially reasonable efforts), for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall have received from Borrower received, in form and each applicable Guarantorsubstance substantially similar to those delivered to the First Lien Agent in connection with the creation of a first priority (but only to the extent so delivered), perfected Lien on such Real Property in accordance with the Credit Agreement:
(i) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, Mortgage Instrument encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “the Mortgaged Property”), together with all related title documents (if any)Properties as to properties owned by the Pledgors;
(ii) maps or plats of an opinion as-built survey of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) the sites of the Mortgaged Properties; it being agreed that the surveys in each state or jurisdiction in which a Mortgaged Property is located with respect existence on the Issue Date and provided to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case pursuant to the terms of this clause (ii) (along with a certificate of an officer of the Issuer in form and substance reasonably substantially similar to that delivered to the First Lien Agent in connection with the creation of a first priority, perfected Lien on such Real Property in accordance with the Credit Agreement) are satisfactory so long as substantially similar to Collateral Agentthe surveys delivered to the First Lien Agent under the Credit Agreement;
(iii) an environmental questionnaire executed by an officer of the Issuer with respect to all owned Mortgaged Properties, along with third-party environmental reviews of all owned Mortgaged Properties, including but not limited to Phase I environmental assessments; it being agreed that the Phase I environmental assessments in existence on the case Issue Date and provided to the First Lien Agent pursuant to the terms of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iiiiii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interestsatisfactory;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies extent delivered to the First Lien Agent in connection with the creation of all recorded documents listed as exceptions a first priority, perfected Lien on such Mortgaged Properties in accordance with the Credit Agreement, opinions of counsel to title or otherwise referred to therein, the Pledgors for each jurisdiction in which the Mortgaged Properties are located in form and substance reasonably satisfactory substantially similar to Collateral Agent and (B) evidence satisfactory to Collateral Agent that such Credit Party has paid those delivered 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 each Mortgaged Property in the appropriate real estate records;First Lien Agent; and
(v) (A) a completed Flood to the extent available, zoning letters from each municipality or other governmental authority for each jurisdiction in which the Mortgaged Properties are located. Neither the Collateral Agent nor the Trustee undertakes any responsibility whatsoever to determine whether any of the foregoing covenants in this Section 4.10 have been satisfied, and neither shall have any liability whatsoever arising out of the failure of the Issuer or any of the Pledgors to satisfy such post-closing requirements, other than to take receipt of the Officers' Certificate with respect to each Mortgaged Property located described in the United Statesnext sentence. Within 210 days of the date hereof, which Flood Certificate the Issuer shall (x) be addressed deliver to the Collateral Agent and the Trustee an Officers' Certificate (y) otherwise comply with upon which the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Trustee and Collateral Agent shall be fully protected in relying), certifying that (xi) as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained deliverables indicated above in this Section 3.1(g), the Collateral Agent 4.10 are substantially similar in form and the Borrower agree substance to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation those delivered to the benefit afforded to First Lien Agent (other than the Lenders therebysubordination provisions contained therein) and (ii) the post-closing covenants set forth in Section 4.10 have been satisfied.
Appears in 1 contract
Samples: Second Lien Security Agreement (Carrols Restaurant Group, Inc.)
Real Property Collateral. In order Subject to create in favor of Collateral AgentSection 4.8(b), for within ninety (90) days after the benefit of Issue Date (or as soon as practical thereafter using commercially reasonable efforts), the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall have received from Borrower received, in form and each applicable Guarantorsubstance substantially similar to those delivered to the First Lien Agent in connection with the creation of a first priority, perfected Lien on such Real Property in accordance with the Credit Agreement:
(i) fully executed and notarized Mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, Mortgage Instrument encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “the Mortgaged Property”), together with all related title documents (if any)Properties as to properties owned by the Pledgors;
(ii) maps or plats of an opinion as-built survey of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) the sites of the Mortgaged Properties; it being agreed that the surveys in each state or jurisdiction in which a Mortgaged Property is located with respect existence on the Issue Date and provided to the enforceability of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case pursuant to the terms of this clause (ii) (along with a certificate of an officer of the Issuer in form and substance reasonably substantially similar to that delivered to the First Lien Agent in connection with the creation of a first priority, perfected Lien on such Real Property in accordance with the Credit Agreement) are satisfactory so long as substantially similar to Collateral Agentthe surveys delivered to the First Lien Agent under the Credit Agreement;
(iii) an environmental questionnaire executed by an officer of the Issuer with respect to all owned Mortgaged Properties, along with third-party environmental reviews of all owned Mortgaged Properties, including but not limited to Phase I environmental assessments; it being agreed that the Phase I environmental assessments in existence on the case Issue Date and provided to the Administrative Agent pursuant to the terms of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iiiiii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interestsatisfactory;
(iv) (A) ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date and copies extent delivered to the First Lien Agent in connection with the creation of all recorded documents listed as exceptions a first priority, perfected Lien on such Mortgaged Properties in accordance with the Credit Agreement, opinions of counsel to title or otherwise referred to therein, the Pledgors for each jurisdiction in which the Mortgaged Properties are located in form and substance reasonably satisfactory substantially similar to Collateral Agent and (B) evidence satisfactory to Collateral Agent that such Credit Party has paid those delivered 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 each Mortgaged Property in the appropriate real estate records;First Lien Agent; and
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zoneextent available, the Borrower’s written acknowledgment of receipt of written notification zoning letters from the Collateral Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community each municipality or other governmental authority for each jurisdiction in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be requiredlocated.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 1 contract
Samples: Second Lien Security Agreement (Carrols Restaurant Group, Inc.)
Real Property Collateral. In order to create continue in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall have received from Borrower and each applicable Guarantor:
(i) fully executed and notarized Mortgages or amendments or modifications to the existing Mortgages, in each case in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any);
(ii) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of the Mortgages or the existing Mortgages as amended through the Second Amendment Effective Date, as applicable, to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest[Reserved];
(iv) (A) (x) with respect to the Mortgages entered into on the Second Amendment Effective Date, ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States encumbered by such Mortgages (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Second Amendment Effective Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent or (y) with respect to each amendment or modification of an existing Mortgage, datedown endorsement to the existing mortgage title insurance policies (each, a “Mortgage Policy,” collectively, the “Mortgage Policies”) relating to each Mortgaged Property encumbered by such existing Mortgage (as amended on the Second Amendment Effective Date) assuring the Collateral Agent that such Mortgage, as amended on the Second Amendment Effective Date is a valid and enforceable first priority lien on such Mortgaged Property in favor of the Collateral Agent for the benefit of the Secured Parties free and clear of all defects, encumbrances and liens except for Permitted Encumbrances (as defined in each Mortgage), and such Mortgage Policy shall otherwise be in form and substance reasonably satisfactory to the Collateral Agent, and (B) evidence satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
Appears in 1 contract
Real Property Collateral. In order Subject to create in favor of Collateral AgentSection 7.15, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Administrative Agent shall have received from Borrower received, in form and each applicable Guarantorsubstance reasonably satisfactory to it:
(i) fully executed and notarized Mortgagesamendments to the mortgages, in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) deeds of trust or deeds to secure debt (each, as the same may be amended, modified, restated or supplemented from time to time, a “"Mortgage Instrument" and collectively the "Mortgage Instruments") encumbering the fee interest and/or leasehold interest of any Loan Party in each of the Real Properties designated in Schedule 6.20(a) as a "Mortgaged Property”), together with all related title documents " (if anyeach a "Mortgaged Property" and collectively the "Mortgaged Properties");
(ii) an opinion in the case of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which the Alabama real property leasehold interest constituting Mortgaged Property, evidence that the applicable lease, a Mortgaged Property is located memorandum of lease with respect to the enforceability thereto, or other evidence of Mortgages to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case lease in form and substance reasonably satisfactory to Collateral the Administrative Agent, has been or will be recorded in all places to the extent necessary or desirable, in the reasonable judgment of the Administrative Agent, so as to enable the Mortgage Instrument encumbering such leasehold interest to effectively create a valid and enforceable first priority lien (subject to Permitted Liens) on such leasehold interest in favor of the Administrative Agent (or such other Person as may be required or desired under local law) for the benefit of Lenders;
(iii) affidavits of the Borrower to the Title Insurance Company (hereinafter defined) that, to the knowledge of the Borrower, there are no material changes to the maps or plats of an as-built survey of the sites of the real property covered by the Mortgage Instruments certified to the Administrative Agent and the title insurance company issuing the policies referred to in Section 5.01(d)(iv) (the "Title Insurance Company") which the Borrower delivered in connection with the closing of the Existing Credit Agreement reasonably satisfactory to each of the Administrative Agent and the Title Insurance Company, dated a date reasonably satisfactory to each of the Administrative Agent and the Title Insurance Company as sufficient to delete any standard printed survey exception which otherwise would be contained in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause Mortgage Policies (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interesthereinafter defined);
(iv) (A) Copies of the 2003 ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor corresponding to each of the eight Mortgage Instruments and an endorsement to each 2003 ALTA mortgagee title insurance policy bringing down the coverage under such policy to the Closing Date and confirming coverage issued by one Chicago Title Company or more another title companies insurance company reasonably satisfactory acceptable to Collateral the Administrative Agent (the "Mortgage Policies") with respect to each Mortgaged Property located in Property, assuring the United States (each, Administrative Agent that each of the Mortgage Instruments creates a “Title Policy”), in amounts not less than valid and enforceable first priority mortgage lien on the fair market value of each applicable Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Date free and copies clear of all recorded documents listed as exceptions to title or defects and encumbrances except Permitted Liens, which Mortgage Policies shall otherwise referred to therein, each be in form and substance reasonably satisfactory to Collateral the Administrative Agent and (B) evidence satisfactory to Collateral Agent that shall include 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 each Mortgaged Property endorsements as were included in the appropriate real estate records2003 ALTA mortgagee title insurance policies;
(v) evidence as to (A) a completed Flood Certificate with respect to each whether any Mortgaged Property located is in an area designated by the United States, which Federal Emergency Management Agency as having special flood or mud slide hazards (a "Flood Certificate shall (xHazard Property") be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such any Mortgaged Property is located in a Flood ZoneHazard Property, the Borrower’s applicable Loan Party's written acknowledgment of receipt of written notification from the Collateral Administrative Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if fact that such Mortgaged Property is located in a Flood Zone Hazard Property and is located in a community that participates in (2) copies of insurance policies or certificates of insurance of the Flood Program, evidence that the Borrower has obtained a policy of Loan Parties evidencing flood insurance that is in compliance with all applicable requirements of satisfactory to the Flood ProgramAdministrative Agent; and
(vi) ALTA surveys of all with respect to each Mortgaged Properties located in Property, a subordination agreement between the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Administrative Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions The Bank of counsel, Title Polices and surveys, if, in each caseNew York, as reasonably determined by trustee under the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders therebySecond Lien Indenture.
Appears in 1 contract
Real Property Collateral. In order to create continue in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, Collateral Agent shall have received from Borrower and each applicable Guarantor:
(i) fully executed and notarized Mortgages or amendments or modifications to the existing Mortgages, in each case in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in Schedule 3.1(g) (each, a “Mortgaged Property”), together with all related title documents (if any);
(ii) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each state or jurisdiction in which a Mortgaged Property is located with respect to the enforceability of the Mortgages or the existing Mortgages as amended through the Second Amendment Effective Date, as applicable, to be recorded in such state or jurisdiction and such other matters as Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to Collateral Agent;
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest[Reserved];
(iv) (A) (x) with respect to the Mortgages entered into on the Second Amendment Effective Date, ALTA mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor issued by one or more title companies reasonably satisfactory to Collateral Agent with respect to each Mortgaged Property located in the United States encumbered by such Mortgages (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect thereto, dated not more than thirty days prior to the Closing Second Amendment Effective Date and copies of all recorded documents listed as exceptions to title or otherwise referred to therein, each in form and substance reasonably satisfactory to Collateral Agent or (y) with respect to each amendment or modification of an existing Mortgage, datedown endorsement to the existing mortgage title insurance policies (each, a “Mortgage Policy,” collectively, the “Mortgage Policies”) relating to each Mortgaged Property encumbered by such existing Mortgage (as amended on the Second Amendment Effective Date) assuring the Collateral Agent that such Mortgage, as amended on the Second Amendment Effective Date is a valid and enforceable first priority lien on such Mortgaged Property in favor of the Collateral Agent for the benefit of the Secured Parties free and clear of all defects, encumbrances and liens except for Permitted Encumbrances (as defined in each Mortgage), and such Mortgage Policy shall otherwise be in form and substance reasonably satisfactory to the Collateral Agent, and (B) evidence satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from the Collateral Agent (x) as to the existence of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements of the Flood Program; and
(vi) ALTA surveys of all Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree to exclude Real Estate Assets from the Collateral and the Borrower shall not be required to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, the cost of obtaining or perfecting a security interest is excessive in relation to the benefit afforded to the Lenders thereby.
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Real Property Collateral. In order to create in favor of Collateral Agent, for the benefit of the Secured Parties, a valid and, subject to any filing and/or recording referred to herein, perfected First Priority security interest in certain Real Estate Assets, The Collateral Agent shall have received from Borrower received, in form and each applicable Guarantorsubstance reasonably satisfactory to the Collateral Agent:
(i) fully executed and notarized mortgages, deeds of trust or deeds to secure debt (each a "Mortgage" and collectively the "Mortgages, ") encumbering the fee interest of the Credit Parties in proper form for recording in all appropriate places in all applicable jurisdictions, encumbering each Real Estate Asset listed in real property asset owned by a Credit Party set forth on Schedule 3.1(g5.1(g) (each, each a “"Mortgaged Property”" and collectively the "Mortgaged Properties"), together with all related title documents (if any);such UCC-1 financing statements as are necessary with respect to each such Mortgaged Property; and
(ii) an opinion of counsel (which counsel shall be reasonably satisfactory to Collateral Agent) in each the state or jurisdiction in which a each Mortgaged Property is located with respect to the enforceability of Mortgages the form of Mortgage, standard remedies with respect thereto and sufficiency of the form of UCC-1 financing statements to be recorded or filed in such state or jurisdiction and such other matters as the Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Collateral Agent;.
(iii) in the case of each Leasehold Property that is a Material Real Estate Asset located in the United States ALTA or in another jurisdiction where the documents set forth in this clause (g)(iii) are reasonably customary, then to the extent available after the use of commercially reasonable efforts by the Credit Parties, (1) a Landlord Consent and Estoppel and (2) evidence that such Leasehold Property is a Recorded Leasehold Interest;
(iv) (A) ALTA other appropriate form mortgagee title insurance policies with all endorsements requested by Collateral Agent or unconditional commitments therefor (the "Mortgage Policies") issued by one or more title companies the Title Insurance Company, in an amount reasonably satisfactory to the Collateral Agent with respect to each Mortgaged Property located in the United States (each, a “Title Policy”), in amounts not less than the fair market value of each Mortgaged Property, together with a title report issued by a title company with respect theretoassuring the Collateral Agent that the applicable Mortgages create valid and enforceable mortgage liens on the respective Mortgaged Properties, dated not more than thirty days prior to the Closing Date free and copies clear of all recorded documents listed as exceptions to title or otherwise referred to therein, each defects and encumbrances except Permitted Liens which Mortgage Policies shall be in form and substance reasonably satisfactory to the Collateral Agent and (B) evidence containing such endorsements as shall be reasonably satisfactory to Collateral 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 each Mortgaged Property in the appropriate real estate records;
(v) (A) a completed Flood Certificate with respect to each Mortgaged Property located in the United States, which Flood Certificate shall (x) be addressed to the Collateral Agent and (y) otherwise comply with the Flood Program; (B) if the Flood Certificate states that providing affirmative insurance and such Mortgaged Property is located in a Flood Zone, the Borrower’s written acknowledgment of receipt of written notification from reinsurance as the Collateral Agent (x) as may request, all of the foregoing in form and substance reasonably satisfactory to the existence Agents;
(iv) Surveys. Maps or plats of such Mortgaged Property and (y) as to whether the community in which each Mortgaged Property is located is participating in the Flood Program; and (C) if such Mortgaged Property is located in a Flood Zone and is located in a community that participates in the Flood Program, evidence that the Borrower has obtained a policy of flood insurance that is in compliance with all applicable requirements an as-built survey of the Flood Program; and
(vi) ALTA surveys sites of all the Mortgaged Properties located in the United States which are not Leasehold Properties, certified to Collateral Agent provided that, if the applicable Borrower is able to obtain a “no change” affidavit acceptable to the title company and does deliver such certificate to the title company to enable it to issue a title policy (1) 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 and (2) including all endorsements that would otherwise have been included had a new survey been obtained, then a new survey shall not be required.
(vii) Notwithstanding anything contained in this Section 3.1(g), the Collateral Agent and the Borrower agree Title Insurance Company in a manner reasonably satisfactory to exclude Real Estate Assets from the Collateral and the Borrower shall not be required them, dated a date satisfactory to deliver any Mortgages, opinions of counsel, Title Polices and surveys, if, in each case, as reasonably determined by the Collateral Agent in writing, and the cost of obtaining or perfecting a security interest is excessive in relation Title Insurance Company by an independent professional licensed land surveyor reasonably satisfactory to the benefit afforded Collateral Agent and the Title Insurance Company, which maps or plats and the surveys on which they are based shall be sufficient to delete any standard printed survey exception contained in the applicable title policy and be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1992, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such maps, plats or surveys the following: (A) the locations on such sites of all the buildings, structures and other improvements and the established building setback lines; (B) the lines of streets abutting the sites and width thereof; (C) all access and other easements appurtenant to the Lenders thereby.sites necessary to use the sites; (D) all roadways, paths, driveways, easements, encroachments and overhanging projections and similar encumbrances affecting the site, whether recorded, apparent from a physical inspection of the sites or otherwise known to the surveyor; (E) any encroachments on any adjoining property by the building structures and improvements on the sites; and (F) if the site is described as being on a filed map, a legend relating the survey to said map;
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