Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering a Mortgaged Property, (i) an amendment or an amendment and restatement thereof (each, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicable.
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Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent of the The Administrative Agent shall have received (such consent not to be unreasonably withheld or delayedi) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, a Mortgage with respect to each Mortgaged Property as of the Closing Date, executed and delivered by a duly authorized officer of the appropriate Credit Party, together with such certificates, affidavits, questionnaires, instruments or returns as shall be reasonably required in connection with filing or recordation thereof and to grant a perfected Mortgage encumbering a Lien on such Mortgaged Property, (iii) an amendment such UCC-1 Financing Statements and other similar statements as are contemplated by such Mortgage, (iii) policies or an amendment certificates of insurance as reasonably required by the Mortgage relating thereto, which policies or certificates shall comply with the insurance requirements contained in subsection 7.5, (iv) evidence reasonably acceptable to the Administrative Agent of payment by Borrower of all mortgage recording taxes, fees, charges, costs and restatement thereof expenses required for the recording of such Mortgage, (eachv) a Lender’s title policy with respect to each such Mortgage paid for by Borrower, issued by Title Company, together with such endorsements (including, without limitation, “tie-in” or “cluster”, first loss, last dollar, usury, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, zoning (provided that with respect to zoning, Borrower may, in lieu of such endorsement, deliver a “Mortgage Amendment”) approved zoning compliance letter prepared by local the appropriate Governmental Authority or foreign counsel (as applicable) a zoning and site requirement summary report prepared by the Planning and Zoning Resource Corporation or other similar service reasonably acceptable to the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property ) and to further grant, preserve, protect, confirm so-called comprehensive coverage over covenants and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texasrestrictions), coinsurance and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except reinsurance as permitted under the Credit Agreement, and in each case in form and substance may be reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of requested by the Administrative Agent with respect to the enforceability of the mortgage as amendedand provided that such endorsements are available in a given jurisdiction, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood Agent, insuring the Mortgage as a first Lien on the relevant Mortgaged Property and subject only to Permitted Encumbrances and such other Liens expressly agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as to by the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that (a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii“Title Policy”), (iiivi) and (iv) above such consents, approvals, estoppels, tenant subordination agreements or other instruments as shall not be required to necessary or appropriate in the extent that local or foreign counsel (as applicable) reasonably acceptable to reasonable judgment of the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the owner or holder of the Fee Property or Leased Property constituting such Mortgaged Property to secure grant the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required Lien contemplated by Regulation H the Mortgage with respect to each such Mortgaged Property reasonably acceptable and (vii) a Survey with respect to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicablesuch Mortgaged Property.
Appears in 1 contract
Samples: Credit Agreement (Atlantic Broadband Management, LLC)
Mortgaged Property. Within 90 days after Trustor does hereby grant, bargain, sell, convey, transfer, assign and set over to Trustee the Incremental Facility Closing Date following: The real estate (herein called the "LAND") described in Exhibit "A" attached hereto and incorporated herein by this reference, and (i) all improvements now or hereafter situated or to be situated on the Land (xhereinafter together called the "IMPROVEMENTS"); and (ii) within 180 days after all right, title and interest of Trustor in and to (1) all streets, roads, alleys, easements, rights-of-way, licenses, rights of ingress and egress, vehicle parking rights and public places, existing or proposed, abutting, adjacent, used in connection with or pertaining to the Incremental Facility Closing Date with Land or the prior consent Improvements; (2) any strips or gores between the Land and abutting or adjacent properties; and (3) all water, and water rights, timber, crops and mineral interests on or pertaining to the Land or the Improvements (the Land, Improvements and other rights, titles and interests referred to in this clause (a) being herein sometimes collectively called the "PREMISES"); (b) all fixtures, equipment, systems, machinery, furniture, furnishings, appliances, inventory, goods, building and construction materials, supplies, and articles of personal property, of every kind and in, on or about the Land or the Improvements, or used in or necessary to the complete and proper planning, development, use, occupancy or operation thereof, or acquired (whether delivered to the Land or stored elsewhere) for use or installation in or on the Land or the Improvements, and all renewals and replacements of substitutions for and additions to the foregoing (the properties referred to in this clause (b) being herein sometimes collectively called the "ACCESSORIES", all of which are hereby declared to be permanent accessions to the Land); (c) all (i) plans and specifications for the Improvements; (ii) Trustor's rights, but not liability for any breach by Trustor, under all commitments (including any commitment for financing to pay any of the Administrative Agent secured indebtedness, as defined below), insurance policies and other contracts and general intangibles (such consent including, but not limited to be unreasonably withheld trademarks, trade names and symbols) related to the Premises or delayedtenants' security deposits, deposits with respect to utility services to the Premises, and any deposits or reserves hereunder or under any other Loan Document, taxes, insurance or otherwise), money, accounts, instruments, documents, notes and chattel paper arising from or by virtue of any transactions related to the Premises or Accessories (without derogation of ARTICLE 3 hereof); (iv) permits, licenses, franchises, certificates, development rights, commitments and rights for utilities, and other rights and privileges obtained in connection with the entry into additional Incremental Facilities under the Credit Agreement Premises or the Junior Lien Credit AgreementAccessories; (v) leases, rents, royalties, bonuses, issues, profits, revenues and other benefits of the Premises and the Accessories (without derogation of ARTICLE 3 hereof, and herein sometimes collectively called the "RENTS AND PROFITS"); (vi) oil, gas and other hydrocarbons and other minerals produced from or allocated to the Land and all products processed or obtained therefrom, and the proceeds thereof; and (yvi) by such later date as engineering, accounting, title, legal and other technical or business data concerning the Administrative Agent Mortgaged Property which are in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering possession of Trustor or in which Trustor can otherwise grant a Mortgaged Property, security interest; and (d) all (i) an amendment proceeds of or an amendment arising from the properties, rights, titles and restatement interests referred to above in this SECTION 1.2, including, but not limited to proceeds of any sale, lease or other disposition thereof, proceeds of each policy of insurance relating thereto (including premium refunds), proceeds of the taking thereof or of any rights appurtenant thereto, including change of grade of streets, curb cuts or other rights of access, by eminent domain or transfer in lieu thereof for public or quasi-public use under any law, and proceeds arising out of any damage thereto; and (eachii) other SWI California Deed of Trust 2 3 interest of every kind and character which Trustor now has or hereafter acquires in, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to or for the Administrative Agentbenefit of the properties, setting forth such changes as are reasonably necessary rights, titles and interests referred to reflect that above in this SECTION 1.2 and all property used or useful in connection therewith, including, but not limited to rights of ingress and egress and remainders, reversions and reversionary rights or interests; and if the lien securing estate of Trustor in any of the Obligations under the Credit Agreement encumbers such Mortgaged Property property referred to above in this SECTION 1.2 is leasehold estate, this conveyance shall include, and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created hereby shall encumber and perfected; (ii) (a) for extend to, all Mortgaged Properties other than those located or additional title, estates, interests or rights which are now owned or may hereafter be acquired by Trustor in Texas, date down and modification endorsements or to the mortgagee’s title policies reflecting property demised under the Mortgage Amendment in respect of each of lease creating the Mortgaged Properties leasehold estate; TO HAVE AND TO HOLD the foregoing rights, interests and properties, and all rights, estates, powers and privileges appurtenant thereto (other than herein collectively called the Mortgaged Properties in Texas"MORTGAGED PROPERTY" or "PROPERTY"), unto Trustee, and (b) for the Mortgaged Properties located to his successors or substitutes in Texasthis trust, a nothing further certificateand to his or their successors and assigns, in all cases (a) trust, however, upon the terms, provisions and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation conditions herein set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicableforth.
Appears in 1 contract
Samples: Packaged Ice Inc
Mortgaged Property. Within 90 days after the Incremental Facility First Amendment Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering a Mortgaged Property, (i) an amendment a new mortgage or an amendment and restatement thereof of the existing Mortgage (each, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent, setting forth such changes as are and in form reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and further to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located such title policies (and title policy endorsements) with extended coverage in Texas, date down and modification endorsements an amount equal to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each fair market value of the applicable Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b)Property, reflecting that there are no encumbrances affecting the each such Mortgaged Properties Property except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent and the Lenders with respect to the enforceability of the mortgage as amendedMortgage Amendment, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to as required by Section 5.5(c) of the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date)Credit Agreement. Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicable.
Appears in 1 contract
Samples: First Amendment (Forterra, Inc.)
Mortgaged Property. Within 90 days Any Real Estate which is subject to any Mortgage, ------------------ including any Real Estate acquired by the Borrower or a Subsidiary after the Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent of the Administrative Agent (such consent not which shall become subject to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreementa Mortgage upon acquisition. Mortgages. Collectively, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering a Mortgaged Property, (i) an amendment or an amendment and restatement thereof (each, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texasthe several mortgages and deeds of trust, date down --------- dated as of May 18, 1994, as amended, and modification endorsements as further amended by the Mortgage Amendments pertaining to such Mortgage, from the Borrower and its Subsidiaries to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to the enforceability fee and leasehold interests of the mortgage Borrower and its Subsidiaries in the Real Estate referred to in Exhibit L-1 hereto and in ------- --- form and substance satisfactory to the Banks and the Agent, (b) each of (i) the Mortgage dated as of September 6, 1994, as amended, together with and as further amended by the Mortgage Amendments, pertaining to such other opinions Mortgage on the fee interest of the Borrower in the Real Estate located in Ocala, Florida; and (ii) the Mortgage dated as of January 5, 1996, as amended, and as further amended by the Administrative Agent shall requireMortgage Amendments, pertaining to such Mortgage on the fee interest of the Borrower in the Real Estate located in Medford, Oregon; (c) the Mortgage dated as of January 30, 1997, as amended by the Mortgage Amendments, pertaining to such Mortgage on the fee interest of the Borrower in the Real Estate located in Franklin, Kentucky; (d) the several mortgages and deeds of trust, dated or to be dated on or prior to the Closing Date, from the Borrower and its Subsidiaries in the Real Estate referred to in Exhibit L-2 hereto and in form and substance reasonably acceptable satisfactory ----------- to the Administrative Agent Banks and the Agent, and (it being understood e) such additional mortgages and agreed that the form and substance deeds of the opinions delivered in connection with trust as may be dated after the Closing Date are reasonably acceptable) from the Borrower and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment its Subsidiaries with respect to any particular Mortgaged Property fee and leasehold interests in Real Estate acquired after the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be Closing Date which the Borrower or such Subsidiary is required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties mortgage pursuant to Section 5.9(b(S)9.13. Multiemployer Plan. Any multiemployer plan within the meaning of (S)3(37) ------------------ of ERISA maintained or contributed to by the Credit Agreement, as applicableBorrower or any ERISA Affiliate.
Appears in 1 contract
Samples: And Term Loan Agreement (Petro Stopping Centers L P)
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (Borrower shall not Transfer, or (x) within 180 days after the Incremental Facility Closing Date with the prior consent cause or permit a Transfer of, all or any part of the Administrative Agent Mortgaged Property (such consent not including any interest in the Mortgaged Property) other than: a Transfer to be unreasonably withheld which Lender has consented in writing; Leases permitted pursuant to the Loan Documents, including the Seniors Housing Facility Lease between Borrower and Master Lessee and the subordination thereof to the terms, provisions, and lien of this Loan Agreement, the Security Instrument, and the other Loan Documents; [reserved]; a Transfer of obsolete or delayed) worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with the entry into additional Incremental Facilities under the Credit Agreement reviewing Borrower’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 11.2(nnnnn) of this Loan Agreement; or the Junior Lien Credit Agreementconveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, Key Principal, Guarantor, or Affiliated Property Operator. Other than a Transfer to which Lender has consented in writing, Borrower shall not Transfer, or cause or permit to be Transferred: any direct or indirect ownership interest in Borrower, Key Principal, Guarantor, or Affiliated Property Operator if such Transfer would cause a change in Control; a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, Guarantor, or Affiliated Property Operator; fifty percent (y50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower or Affiliated Property Operator (if applicable) that existed on the Effective Date (individually or on an aggregate basis); the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, Key Principal, Guarantor or Affiliated Property Operator (if applicable) separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement; or a Transfer to a new key principal or new guarantor (if such later date as the Administrative Agent in its sole discretion may permitnew key principal or guarantor is an entity), which entity has an organizational existence termination date that ends before the Borrower shall deliverMaturity Date. Notwithstanding the foregoing, with respect to each Mortgage encumbering if a Mortgaged PropertyPublicly-Held Corporation or a Publicly-Held Trust Controls Borrower, (i) an amendment Key Principal, Guarantor, or an amendment and restatement thereof (eachAffiliated Property Operator, or owns a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, Guarantor, or Affiliated Property Operator, a “Mortgage Amendment”Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Borrower provides written notice to Lender not later than thirty (30) approved days thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the ownership interests in such Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Transfers of direct or indirect limited partnership or non-managing member interests in Borrower or Affiliated Property Operator that result in a Transfer of fifty percent (50%) or more of the limited partnership or non-managing membership interests shall be consented to by local Lender if such Transfer satisfies the following conditions: Key Principal or foreign counsel Guarantor (as applicable) reasonably acceptable to Controls Borrower or Affiliated Property Operator, as applicable, with the Administrative Agent, setting forth such changes same rights and abilities as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local Key Principal or foreign counsel Guarantor (as applicable) in each jurisdiction in which a Mortgage Controls Borrower or Affiliated Property is located for Operator, as applicable, immediately prior to the benefit date of such Transfer; such Transfer satisfies the requirements of Section 11.2(ooooo)(12)(J); Borrower shall provide Lender not less than thirty (30) days prior written notice of the Administrative Agent proposed Transfer and obtain Lender’s approval; Borrower shall provide with respect its notice to Lender an organizational chart reflecting, and all organizational documents relevant to, the enforceability proposed Transfer; Borrower shall provide with its notice to Lender a certification that no change of Control of Borrower, Affiliated Property Operator, or Key Principal shall occur as a result of such Transfer; the transferee shall not be, as of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance date of the opinions delivered Transfer, a Prohibited Person if, as a result of the Transfer, the transferee will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower (or, if any other investor will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower that did not own twenty-five percent (25%) or more before the Transfer, such investor shall not, as of the date of the Transfer, be a Prohibited Person); Borrower shall pay to Lender: concurrently with its notice to Lender, the Review Fee plus a Transfer Fee of $25,000; and upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred by Lender in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens its review of the Mortgages Transfer request; and Borrower and Affiliated Property Operator shall execute upon demand such documents or certifications as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) Lender reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required requires in order for to confirm the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection post-transfer ownership structure, compliance with the Closing Date). Nothing herein shall serve to amend or affect in stated conditions, and any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicableother relevant factual matter.
Appears in 1 contract
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (Borrower shall not Transfer, or (x) within 180 days after the Incremental Facility Closing Date with the prior consent cause or permit a Transfer of, all or any part of the Administrative Agent Mortgaged Property (such consent not including any interest in the Mortgaged Property) other than: a Transfer to be unreasonably withheld which Lender has consented in writing; Leases permitted pursuant to the Loan Documents; [reserved]; a Transfer of obsolete or delayed) worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with the entry into additional Incremental Facilities under the Credit Agreement reviewing Borrower’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 1.06(a) of this Loan Agreement; or the Junior Lien Credit Agreementconveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, Key Principal, or Guarantor. Other than a Transfer to which Lender has consented in writing, Borrower shall not Transfer, or cause or permit to be Transferred: any direct or indirect ownership interest in Borrower, Key Principal, or Guarantor (yif applicable) if such Transfer would cause a change in Control; a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor (if applicable); fifty percent (50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower that existed on the Effective Date (individually or on an aggregate basis); the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, Key Principal, or Guarantor (if applicable) separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement; or a Transfer to a new key principal or new guarantor (if such later date as the Administrative Agent in its sole discretion may permitnew key principal or guarantor is an entity), which entity has an organizational existence termination date that ends before the Borrower shall deliverMaturity Date. Notwithstanding the foregoing, with respect to each Mortgage encumbering if a Mortgaged PropertyPublicly-Held Corporation or a Publicly-Held Trust Controls Borrower, (i) an amendment Key Principal, or an amendment and restatement thereof (eachGuarantor, or owns a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor, a “Mortgage Amendment”Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Borrower provides written notice to Lender not later than thirty (30) approved days thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the ownership interests in such Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Transfers of direct or indirect limited partnership or non-managing member interests in Borrower that result in a Transfer of fifty percent (50%) or more of the limited partnership or non-managing membership interests shall be consented to by local Lender if such Transfer satisfies the following conditions: Key Principal or foreign counsel Guarantor (as applicable) reasonably acceptable to Controls Borrower with the Administrative Agent, setting forth such changes same rights and abilities as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local Key Principal or foreign counsel Guarantor (as applicable) in each jurisdiction in which a Mortgage Property is located for Controls Borrower immediately prior to the benefit date of such Transfer; such Transfer satisfies the requirements of Section 1.06(b)(2)(C); Borrower shall provide Lender not less than thirty (30) days prior written notice of the Administrative Agent proposed Transfer and obtain Lender’s approval; Borrower shall provide with respect its notice to Lender an organizational chart reflecting, and all organizational documents relevant to, the enforceability proposed Transfer; Borrower shall provide with its notice to Lender a certification that no change of Control of Borrower or Key Principal shall occur as a result of such Transfer; the transferee shall not be, as of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance date of the opinions delivered Transfer, a Prohibited Person if, as a result of the Transfer, the transferee will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower (or, if any other investor will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower that did not own twenty-five percent (25%) or more before the Transfer, such investor shall not, as of the date of the Transfer, be a Prohibited Person); Borrower shall pay to Lender: concurrently with its notice to Lender, the Review Fee plus a Transfer Fee of $25,000; and upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred by Lender in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens its review of the Mortgages Transfer request; and Borrower shall execute upon demand such documents or certifications as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) Lender reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required requires in order for to confirm the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection post-transfer ownership structure, compliance with the Closing Date). Nothing herein shall serve to amend or affect in stated conditions, and any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicableother relevant factual matter.
Appears in 1 contract
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent Any sale of any part of the Administrative Agent (Mortgaged Property located in the State of Mississippi shall be made after having published notice of the day, time, place and terms of sale in a newspaper published in the county in which the Mortgaged Property is situated for three consecutive weeks preceding the date of sale; and by posting one notice of such consent not sale at the courthouse of the county in which the Mortgaged property is situated for said period of time. The Trustee shall have the power to select the county or judicial district in which the sale shall be unreasonably withheld made, newspaper advertisement published, and notice of sale posted in the event the Mortgaged Property is located in more than one county or delayed) in two judicial districts in the same county. The Trustee in said trust shall have the full power to fix the day, time, place and terms of sale and may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by the Trustee, including the posting of notices in the conduct of the sale but in the name of and on behalf of the Trustee, his substitute or successor. In connection with the entry into additional Incremental Facilities under foregoing, Mortxxxxx xxxves the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering a Mortgaged Property, (i) an amendment or an amendment and restatement thereof (each, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect provisions of each Section 89-1-55 of the Mortgaged Properties (other Mississippi Code of 1972, recompiled and laws amendatory thereto, if any, as far as said section restricts the right of the Trustee to offer at sale more than 160 acres at one time and the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificateTrustee may, in all cases (a) and (b)his discretion, reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for offer the Mortgaged Property to secure as a whole or in such part or parts as he may deem desirable regardless of the Incremental Term Loans manner in which it may be described. Any sale made by the Trustee hereunder may be adjourned by announcement at the time and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance place appointed for such sale without further notice except as may be required by Regulation H with respect to each Mortgaged Property reasonably acceptable to law. Mortxxxxx xxxo waives the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess provisions of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations Section 89-1-59 of the Loan Parties pursuant Mississippi Code of 1972, recompiled and laws amendatory thereto, insofar as said section allows the Mortgagor to reinstate an accelerated debt. Mortgagor: CORRIDA RESOURCES, INC. By: /s/ Robexx X. Xxxxxxx ------------------------ Robexx X. Xxxxxxx Vice President By: /s/ Ronaxx Xxxx ------------------------ Ronaxx Xxxx Treasurer WITNESSES: ------------------------------ Name: ------------------------------ Name: -------------------------------- Notary Public -21- 26 THE STATE OF TEXAS Section 5.9(b) Section COUNTY OF HARRXX Section MISSISSIPPI Personally appeared before me, the undersigned authority in and for said county and state, on this 31st day of July, 1997, within my jurisdiction, the Credit Agreementwithin named Robexx X. Xxxxxxx xxx Ronaxx Xxxx xxx acknowledged that they are the Vice President and Treasurer of CORRIDA RESOURCES, INC., a Nevada corporation, and that for and on behalf of said corporation, and as applicableits act and deed, he executed the above and foregoing instrument, after first having been duly authorized by said corporation so to do. NEW MEXICO The foregoing instrument was acknowledged before me on July 31, 1997 by Robexx X. Xxxxxxx, Xxce President, and Ronaxx Xxxx, Xxeasurer, of CORRIDA RESOURCES, INC., a Nevada corporation, on behalf of such corporation. OKLAHOMA This instrument was acknowledged before me on July 31, 1997 by Robexx X. Xxxxxxx, Xxce President, and Ronaxx Xxxx, Xxeasurer, of CORRIDA RESOURCES, INC., a Nevada corporation. TEXAS This instrument was acknowledged before me on July 31, 1997 by Robexx X. Xxxxxxx, Xxce President, and Ronaxx Xxxx, Xxeasurer, of CORRIDA RESOURCES, INC., a Nevada corporation, on behalf of such corporation. _________________________________ Notary Public in and for the State of Texas [SEAL] My commission expires:___________
Appears in 1 contract
Samples: Queen Sand Resources Inc
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (Borrower shall not Transfer, or (x) within 180 days after the Incremental Facility Closing Date with the prior consent cause or permit a Transfer of, all or any part of the Administrative Agent Mortgaged Property (such consent not including any interest in the Mortgaged Property) other than: a Transfer to be unreasonably withheld which Xxxxxx has consented in writing; Leases permitted pursuant to the Loan Documents; [reserved]; a Transfer of obsolete or delayed) worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Xxxxxx has consented, and Xxxxxxxx has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with the entry into additional Incremental Facilities under the Credit Agreement reviewing Borrower’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 11.02(a) of this Loan Agreement; or the Junior Lien Credit Agreementconveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, Key Principal, or (y) by such later date as the Administrative Agent Guarantor. Other than a Transfer to which Xxxxxx has consented in its sole discretion may permit)writing, the Borrower shall delivernot Transfer, with respect or cause or permit to each Mortgage encumbering be Transferred: any direct or indirect ownership interest in Borrower, Key Principal, or Guarantor (if applicable) if such Transfer would cause a Mortgaged Propertychange in Control; a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor (iif applicable); fifty percent (50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower that existed on the Effective Date (individually or on an amendment aggregate basis); or an amendment and restatement thereof the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, Key Principal, or Guarantor (eachif applicable) separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement. Notwithstanding the foregoing, if a Publicly-Held Corporation or a Publicly-Held Trust Controls Borrower, Key Principal, or Guarantor, or owns a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor, a “Mortgage Amendment”Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Xxxxxxxx provides written notice to Lender not later than thirty (30) approved days thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the ownership interests in such Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Transfers of direct or indirect limited partnership or non-managing member interests in Borrower that result in a Transfer of fifty percent (50%) or more of the limited partnership or non-managing membership interests shall be consented to by local Lender if such Transfer satisfies the following conditions: Key Principal or foreign counsel Guarantor (as applicable) reasonably acceptable to Controls Borrower with the Administrative Agent, setting forth such changes same rights and abilities as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local Key Principal or foreign counsel Guarantor (as applicable) in each jurisdiction in which a Mortgage Property is located for Controls Borrower immediately prior to the benefit date of such Transfer; such Transfer satisfies the requirements of Section 11.02(b)(2)(C); Borrower shall provide Lender not less than thirty (30) days prior written notice of the Administrative Agent proposed Transfer and obtain Xxxxxx’s approval; Borrower shall provide with respect its notice to Lender an organizational chart reflecting, and all organizational documents relevant to, the enforceability proposed Transfer; Borrower shall provide with its notice to Lender a certification that no change of Control of Borrower or Key Principal shall occur as a result of such Transfer; the transferee shall not be, as of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance date of the opinions delivered Transfer, a Prohibited Person if, as a result of the Transfer, the transferee will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower (or, if any other investor will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower that did not own twenty-five percent (25%) or more before the Transfer, such investor shall not, as of the date of the Transfer, be a Prohibited Person); Borrower shall pay to Lender: concurrently with its notice to Lender, the Review Fee plus a Transfer Fee of $25,000; and upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred by Lender in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens its review of the Mortgages Transfer request; and Borrower shall execute upon demand such documents or certifications as amendedLender reasonably requires in order to confirm the post-transfer ownership structure, compliance with the stated conditions, and any other relevant factual matter. Name Change or Entity Conversion. Converting from one type of legal entity into another type of legal entity for any lawful purpose shall require Lender’s prior written consent. Lender shall consent to Borrower changing its name or changing its jurisdiction of organization provided that: Xxxxxx receives written notice at least thirty (30) days prior to such change or conversion, which notice shall include organizational charts that reflect the structure of Borrower both prior to and subsequent to such name change; providedsuch Transfer is not otherwise prohibited under the provisions of Section 11.02(b)(2); Borrower executes an amendment to this Loan Agreement and any other Loan Documents required by Xxxxxx documenting the name change; Xxxxxxxx agrees and acknowledges, at Xxxxxxxx’s expense, that a Mortgage Amendment Xxxxxxxx will execute and record in the land records any instrument required by the Property Jurisdiction to be recorded to evidence such name change (or provide Lender with respect to any particular Mortgaged Property and written confirmation from the related documentation set forth in clauses title company (iivia electronic mail or letter) that no such instrument is required), (iii) Borrower will execute any additional documents required by Xxxxxx, including the amendment to this Loan Agreement, and (iv) above shall not allow such documents to be required recorded or filed in the land records of the Property Jurisdiction, Xxxxxx will obtain a “date down” endorsement to the extent that local Lender’s Title Policy (or foreign counsel (as applicable) reasonably acceptable obtain a new Title Policy if a “date down” endorsement is not available in the Property Jurisdiction), evidencing title to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property being in the name of the successor entity and the Lien of the Security Instrument against the Mortgaged Property, and Lender will file any required UCC-3 financing statement and make any other filing deemed necessary to secure maintain the Incremental Term Loans priority of its Liens on the Mortgaged Property; and other extensions of credit thereunder. The no later than ten (10) days subsequent to such name change, Borrower shall also provide flood determinations Lender the documentation filed with the appropriate office in Borrower’s state of formation evidencing such name change, copies of the organizational documents of Borrower, including any amendments, filed with the appropriate office in Borrower’s state of formation reflecting the post-conversion Borrower name, form of organization, and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable structure, and if available, new certificates of good standing or valid formation for Borrower. No Delaware Statutory Trust or Series LLC Conversion. Notwithstanding any provisions herein to the Administrative Agent (it being understood and agreed that Borrower contrary, no Borrower, Guarantor, or Key Principal shall not be required convert to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend a Delaware Statutory Trust or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicablea series limited liability company.
Appears in 1 contract
Mortgaged Property. Within 90 days after (a) Mortgagor owns the Incremental Facility Closing Date (net revenue interest and working interests as are specified in Exhibit A under the terms “Net Revenue Interest” and “Working Interest” attributable to each well, unit or (x) within 180 days after the Incremental Facility Closing Date with the prior consent oil, gas and mineral lease described or referred to in Exhibit A hereto and comprising a part of the Administrative Agent (such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering a Mortgaged Property, free of any and all liens or other agreements, restrictions or limitations of any nature or kind (all such liens and other agreements, restrictions or limitations being herein collectively called the “Encumbrances”), except as specified on Exhibit A hereto and except for Permitted Liens (as defined in the Credit Agreement) (such permitted encumbrances and liens being herein collectively called the “Permitted Encumbrances”). With respect to the foregoing warranties and representations, it is acknowledged that Mortgagor’s intention is to mortgage and affect hereby the entirety of the interest that Mortgagor owns in all of the Mortgaged Property, whether now or hereafter, and as a consequence thereof, if for any reason the interest of Mortgagor in any Mortgaged Property in fact exceeds the Net Revenue Interest and/or the Working Interest, as applicable (as specified in Exhibit A hereto), which Mortgagor represents and warrants herein that it owns, Mortgagor agrees that (i) an amendment or an amendment such warranted Net Revenue Interest and restatement thereof (eachWorking Interest, a “Mortgage Amendment”) approved by local or foreign counsel as applicable (as applicablespecified in Exhibit A hereto), are intended to be the minimum undivided interests owned by and attributable to Mortgagor, and (ii) reasonably acceptable to the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the this Mortgage creates a valid lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each entirety of the interest owned by and attributable to such Mortgaged Properties (other Property whether such interests are equal to or greater than the Mortgaged Properties in Texas), interests specified as Net Revenue Interests and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel Working Interests (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicableExhibit A hereto.
Appears in 1 contract
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (Borrower shall not Transfer, or (x) within 180 days after the Incremental Facility Closing Date with the prior consent cause or permit a Transfer of, all or any part of the Administrative Agent Mortgaged Property (such consent not including any interest in the Mortgaged Property) other than: a Transfer to be unreasonably withheld which Lender has consented in writing; Leases permitted pursuant to the Loan Documents; [reserved]; a Transfer of obsolete or delayed) worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with the entry into additional Incremental Facilities under the Credit Agreement reviewing Borrower’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 11.2(aaaaa) of this Loan Agreement; or the Junior Lien Credit Agreementconveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, Key Principal, or Guarantor. Other than a Transfer to which Lender has consented in writing, Borrower shall not Transfer, or cause or permit to be Transferred: any direct or indirect ownership interest in Borrower, Key Principal, or Guarantor (yif applicable) if such Transfer would cause a change in Control; a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor (if applicable); fifty percent (50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower that existed on the Effective Date (individually or on an aggregate basis); the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, Key Principal, or Guarantor (if applicable) separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement; or a Transfer to a new key principal or new guarantor (if such later date as the Administrative Agent in its sole discretion may permitnew key principal or guarantor is an entity), which entity has an organizational existence termination date that ends before the Borrower shall deliverMaturity Date. Notwithstanding the foregoing, with respect to each Mortgage encumbering if a Mortgaged PropertyPublicly-Held Corporation or a Publicly-Held Trust Controls Borrower, (i) an amendment Key Principal, or an amendment and restatement thereof (eachGuarantor, or owns a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor, a “Mortgage Amendment”Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Borrower provides written notice to Lender not later than thirty (30) approved days thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the ownership interests in such Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Transfers of direct or indirect limited partnership or non-managing member interests in Borrower that result in a Transfer of fifty percent (50%) or more of the limited partnership or non-managing membership interests shall be consented to by local Lender if such Transfer satisfies the following conditions: Key Principal or foreign counsel Guarantor (as applicable) reasonably acceptable to Controls Borrower with the Administrative Agent, setting forth such changes same rights and abilities as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local Key Principal or foreign counsel Guarantor (as applicable) in each jurisdiction in which a Mortgage Property is located for Controls Borrower immediately prior to the benefit date of such Transfer; such Transfer satisfies the requirements of Section 11.2(bbbbb)(9)(J); Borrower shall provide Lender not less than thirty (30) days prior written notice of the Administrative Agent proposed Transfer and obtain Lender’s approval; Borrower shall provide with respect its notice to Lender an organizational chart reflecting, and all organizational documents relevant to, the enforceability proposed Transfer; Borrower shall provide with its notice to Lender a certification that no change of Control of Borrower or Key Principal shall occur as a result of such Transfer; the transferee shall not be, as of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance date of the opinions delivered Transfer, a Prohibited Person if, as a result of the Transfer, the transferee will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower (or, if any other investor will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower that did not own twenty-five percent (25%) or more before the Transfer, such investor shall not, as of the date of the Transfer, be a Prohibited Person); Borrower shall pay to Lender: concurrently with its notice to Lender, the Review Fee plus a Transfer Fee of $25,000; and upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred by Lender in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens its review of the Mortgages Transfer request; and Borrower shall execute upon demand such documents or certifications as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) Lender reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required requires in order for to confirm the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection post-transfer ownership structure, compliance with the Closing Date). Nothing herein shall serve to amend or affect in stated conditions, and any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicableother relevant factual matter.
Appears in 1 contract
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with With respect to each Mortgage encumbering a Mortgaged PropertyMortgage, (i) an amendment or an amendment each Loan Party and restatement thereof (eacheach of their respective Subsidiaries, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to , is the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each lawful owner of the Mortgaged Properties (other than Property described therein and has good right and authority to grant, bargain, sell, transfer, assign and mortgage the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amendedsame; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable described in Exhibit A to each Mortgage, its interests in each such Mortgaged Property is no less than that Net Revenue Interest and no greater than the Administrative Agent Working Interest set forth in Exhibit A to such Mortgage for such Mortgaged Property; all oil, gas and/or mineral lease and leasehold estates, gas purchase and sales contracts, pipeline easements and rights-of-way, processing contracts, franchises, licenses and other agreements comprising or relating to such Mortgaged Property or any portion thereof are valid and subsisting and are in full force and effect and, except as described on Schedule 6.18, no default now exists under such estates, contracts, easements, rights-of-way, franchises, licenses or other agreements and none of Borrower, any other Loan Party or their respective Subsidiaries has (it being understood a) received any notice of default or claimed default thereunder and agreed that Borrower shall not be required (b) any knowledge of any event or circumstance which with notice or passage of time or both could constitute a default thereunder; such leases are subject to provide no overriding royalties or other burdens or charges, except as reflected herein or in the Exhibit A to such Mortgage and ,except as described on Schedule 6.18, all material rents, royalties and other payments due and payable by any information in excess Loan Party or any of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreementtheir respective Subsidiaries, as applicable, under such Mortgaged Property have been properly and timely paid and all ad valorem, property, oil and gas production, excise and severance taxes payable by any Loan Party or any of their respective Subsidiaries, as applicable, have been duly paid; such Mortgaged Property is free and clear from all Liens except the Permitted Liens, and except as shown in Exhibit A for such Mortgage; all producing xxxxx located on such Mortgaged Property or properties unitized therewith have been legally drilled in all material respects and are not deviated in any material respect from the vertical more than the maximum permitted by applicable laws, rules and regulations, and such xxxxx are in fact bottomed under and are producing from lands and, if applicable, depths described in said Exhibit A or lands unitized therewith.
Appears in 1 contract
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement, the Junior Lien Credit Agreement or the Junior Lien ABL Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering a Mortgaged Property, (i) an amendment or an amendment and restatement thereof (each, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicable.
Appears in 1 contract
Samples: First Incremental (Forterra, Inc.)
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with With respect to each Mortgage encumbering a Mortgaged PropertyMortgage, (i) an amendment or an amendment Borrower, each Designated Borrower and restatement thereof (eacheach other Subsidiary, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to , is the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each lawful owner of the Mortgaged Properties (other than Property described therein and has good right and authority to grant, bargain, sell, transfer, assign and mortgage the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amendedsame; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable described on Exhibit A to each Mortgage, its interests in each such Mortgaged Property is no less than that Net Revenue Interest and no greater than the Administrative Agent Working Interest set forth in Exhibit A to such Mortgage for such Mortgaged Property, all oil, gas and/or mineral lease and leasehold estates, gas purchase and sales contracts, pipeline easements and rights-of-way, processing contracts, franchises, licenses and other agreements comprising or relating to such Mortgaged Property or any portion thereof are valid and subsisting and are in full force and effect and, except as described in Schedule 6.18, no default now exists under such estates, contracts, easements, rights-of-way, franchises, licenses or other agreements and none of Borrower, any Designated Borrower or their respective Subsidiaries has (it being understood a) received any notice of default or claimed default thereunder and agreed that (b) any knowledge of any event or circumstance which with notice or passage of time or both could constitute a default thereunder; such leases are subject to no overriding royalties or other burdens or charges, except as reflected herein or in the Exhibit A to such Mortgage and, except as described in Schedule 6.18, all rents, royalties and other payments due and payable by Borrower, any Designated Borrower shall not be required to provide or any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreementother Subsidiary, as applicable, under such Mortgaged Property have been properly and timely paid and all ad valorem, property, oil and gas production, excise and severance taxes payable by Borrower, any Designated Borrower or any other Subsidiary, as applicable, have been duly paid; such Mortgaged Property is free and clear from all Liens except the Permitted Liens, and except as shown in Exhibit A for such Mortgage; all producing xxxxx located on such Mortgaged Property or properties unitized therewith have been legally drilled and are not deviated from the vertical more than the maximum permitted by applicable laws, rules and regulations, and such xxxxx are in fact bottomed under and are producing from lands described in said Exhibit A or lands unitized therewith, except in each case to the extent that failure of such representation to be true could not reasonably be expected to have a Material Adverse Effect.
Appears in 1 contract
Mortgaged Property. Within 90 days after of the Incremental Facility Closing Second Refinancing Amendment Effective Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permitagree), the Borrower Administrative Agent shall deliver, with respect have received: (a) a fully executed counterpart of an amendment to each existing Mortgage encumbering a Mortgaged Property, listed on Schedule 3.15(3) hereto (i) an amendment or an amendment and restatement thereof (eachindividually, a “Mortgage Amendment” and, collectively, “Mortgage Amendments”) approved ; together with such existing Mortgages, as amended by local the applicable Mortgage Amendments, if any, individually, an “Amended Mortgage” and, collectively, “Amended Mortgages”), each duly executed by the Borrower or foreign counsel (applicable Limited Guarantor, as applicable) reasonably acceptable the case may be, together with evidence that such counterparts have been delivered to the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that title insurance company insuring the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfectedAmended Mortgages for recording; (iib) (a) for all Mortgaged Properties other than those located in Texas, a date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered endorsement in connection with each existing lender’s title insurance policy insuring each existing Mortgage or to the Closing Date are reasonably acceptable) extent unavailable, a new lender’s title insurance policy, insuring that each Amended Mortgage is a valid and enforceable Lien on the applicable Mortgaged Property, free of any other Liens except Permitted Liens; and (ivc) such further documentsaffidavits, instrumentscertificates, acts or agreements information and instruments of indemnification, as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to induce the extent that local or foreign counsel title company to issue the endorsements and/or title insurance policies contemplated in subparagraph (as ii) above and evidence of payment of all applicable title insurance premiums, search and examination charges, mortgage recording taxes, if applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is , and related charges required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions issuance of credit thereundersuch endorsements and/or title insurance policies. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicable.SECTION 7 Reaffirmation
Appears in 1 contract
Samples: Term Loan Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Mortgaged Property. Within 90 days after Upon any payment by the Incremental Facility Closing Date (Owner Trustee pursuant to the first or (x) within 180 days after second preceding paragraphs of this Section 4.03, the Incremental Facility Closing Date with Owner Trustee shall be subrogated to the prior consent rights of the Administrative Agent Mortgagee and the Note Holders in respect of the Basic Rent which was overdue at the time of such payment and interest payable by the Lessee on account of its being overdue and any Supplemental Rent in respect of the reimbursement of amounts paid by Owner Trustee pursuant to the immediately preceding paragraph (such consent not to but in either case shall have no rights as a secured party hereunder), and thereafter, the Owner Trustee shall be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or entitled (y) by such later date so long as the Administrative Agent in its sole discretion application thereof shall not give rise to an Event of Default hereunder) to receive such overdue Basic Rent or Supplemental Rent, as the case may permit)be, and interest thereon upon receipt thereof by the Borrower shall deliverMortgagee; PROVIDED, with respect to each Mortgage encumbering a Mortgaged PropertyHOWEVER, that (i) an amendment or an amendment if the Original Amount and restatement thereof (eachinterest on the Equipment Notes shall have become due and payable pursuant to Section 4.04(b) hereof, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable such subrogation shall, until the Secured Obligations shall have been paid in full, be subordinate to the Administrative Agentrights of the Mortgagee, setting forth the Note Holders and the Indenture Indemnitees in respect of such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers payment of overdue Basic Rent, Supplemental Rent and such Mortgaged Property interest and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) the Owner Trustee shall not otherwise attempt to recover any such amount paid by it on behalf of the Lessee pursuant to this Section 4.03 except by demanding of the Lessee payment of such amount, or by commencing an action at law against the Lessee and obtaining and enforcing a judgment against the Lessee for the payment of such amount or taking appropriate action in a pending action at law against the Lessee (aPROVIDED, that at no time while an Event of Default shall have occurred and be continuing shall any such demand be made or shall any such action be commenced (or continued) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to any amounts nevertheless received by the mortgagee’s title policies reflecting the Mortgage Amendment Owner Trustee in respect of each of the Mortgaged Properties (other than the Mortgaged Properties thereof shall be held in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located trust for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall requireof, and in form and substance reasonably acceptable to promptly paid to, the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements Mortgagee for distribution as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing DateSection 3.03 hereof). Nothing herein Neither the Owner Trustee nor the Owner Participant shall serve have the right to amend cure any Lease Event of Default or affect Lease Default except as specified in any way the obligations of the Loan Parties pursuant to this Section 5.9(b) of the Credit Agreement, as applicable4.03.
Appears in 1 contract
Samples: Continental Airlines Inc /De/
Mortgaged Property. Within 90 days after IDOT Guarantor shall not Transfer, or cause or permit a Transfer of, all or any part of the Incremental Facility Closing Mortgaged Property (including any interest in the Mortgaged Property) other than: a Transfer to which Lender has consented in writing; Leases permitted pursuant to the Loan Documents; [reserved]; a Transfer of obsolete or worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and IDOT Guarantor has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with reviewing IDOT Guarantor’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 11.2(aaaaa) of this Loan Agreement; or the conveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, IDOT Guarantor, Key Principal, or Guarantor. Other than a Transfer to which Lender has consented in writing, no Obligor shall Transfer, or cause or permit to be Transferred: any direct or indirect ownership interest in Borrower, IDOT Guarantor, Key Principal, or Guarantor (if applicable) if such Transfer would cause a change in Control; a direct or indirect Restricted Ownership Interest in Borrower, IDOT Guarantor, Key Principal, or Guarantor (if applicable); fifty percent (50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower or IDOT Guarantor that existed on the Effective Date (individually or on an aggregate basis); the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, IDOT Guarantor, Key Principal, or Guarantor (xif applicable) within 180 separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement; or a Transfer to a new key principal or new guarantor (if such new key principal or guarantor is an entity), which entity has an organizational existence termination date that ends before the Maturity Date. Notwithstanding the foregoing, if a Publicly-Held Corporation or a Publicly-Held Trust Controls Borrower, IDOT Guarantor, Key Principal, or Guarantor, or owns a direct or indirect Restricted Ownership Interest in Borrower, IDOT Guarantor, Key Principal, or Guarantor, a Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Borrower provides written notice to Lender not later than thirty (30) days after thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the Incremental Facility Closing Date ownership interests in such Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Transfers of direct or indirect limited partnership or non-managing member interests in Obligor that result in a Transfer of fifty percent (50%) or more of the limited partnership or non-managing membership interests shall be consented to by Lender if such Transfer satisfies the following conditions: Key Principal or Guarantor (as applicable) Controls Obligor with the same rights and abilities as Key Principal or Guarantor (as applicable) Controls Obligor immediately prior consent to the date of such Transfer; such Transfer satisfies the requirements of Section 11.2(bbbbb)(9)(J); Obligor shall provide Lender not less than thirty (30) days prior written notice of the Administrative Agent proposed Transfer and obtain Lender’s approval; Obligor shall provide with its notice to Lender an organizational chart reflecting, and all organizational documents relevant to, the proposed Transfer; Obligor shall provide with its notice to Lender a certification that no change of Control of Obligor or Key Principal shall occur as a result of such Transfer; the transferee shall not be, as of the date of the Transfer, a Prohibited Person if, as a result of the Transfer, the transferee will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Obligor (or, if any other investor will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Obligor that did not own twenty-five percent (25%) or more before the Transfer, such investor shall not, as of the date of the Transfer, be a Prohibited Person); Obligor shall pay to Lender: concurrently with its notice to Lender, the Review Fee plus a Transfer Fee of $25,000; and upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred by Lender in connection with its review of the Transfer request; and Obligor shall execute upon demand such documents or certifications as Lender reasonably requires in order to confirm the post-transfer ownership structure, compliance with the stated conditions, and any other relevant factual matter. Name Change or Entity Conversion. Lender shall consent to Obligor changing its name, changing its jurisdiction of organization, or converting from one type of legal entity into another type of legal entity for any lawful purpose, provided that: Lender receives written notice at least thirty (30) days prior to such change or conversion, which notice shall include organizational charts that reflect the structure of Obligor both prior to and subsequent to such name change or entity conversion; such Transfer is not otherwise prohibited under the provisions of Section 11.2(bbbbb)(9); Obligor executes an amendment to this Loan Agreement and any other Loan Documents required by Lender documenting the name change or entity conversion; Obligor agrees and acknowledges, at Obligor’s expense, that Obligor will execute and record in the land records any instrument required by the Property Jurisdiction to be unreasonably withheld recorded to evidence such name change or delayedentity conversion (or provide Lender with written confirmation from the title company (via electronic mail or letter) that no such instrument is required), Obligor will execute any additional documents required by Lender, including the amendment to this Loan Agreement, and allow such documents to be recorded or filed in the land records of the Property Jurisdiction, Lender will obtain a “date down” endorsement to the Lender’s Title Policy (or obtain a new Title Policy if a “date down” endorsement is not available in the Property Jurisdiction), evidencing title to the Mortgaged Property being in the name of the successor entity and the Lien of the Security Instrument against the Mortgaged Property, and Lender will file any required UCC-3 financing statement and make any other filing deemed necessary to maintain the priority of its Liens on the Mortgaged Property; and no later than ten (10) days subsequent to such name change or entity conversion, Obligor shall provide Lender the documentation filed with the appropriate office in Obligor’s state of formation evidencing such name change or entity conversion, copies of the organizational documents of Obligor, including any amendments, filed with the appropriate office in Obligor’s state of formation reflecting the post-conversion Obligor name, form of organization and structure, and if available, new certificates of good standing or valid formation for Obligor. No Delaware Statutory Trust or Series LLC Conversion. Notwithstanding any provisions herein to the contrary, no Obligor, Guarantor, or Key Principal shall convert to a Delaware Statutory Trust or a series limited liability company. No Other Indebtedness. Other than the Mortgage Loan, Obligor shall not incur or be obligated at any time with respect to any loan or other indebtedness (except trade payables as otherwise permitted in this Loan Agreement), including any indebtedness secured by a Lien on, or the cash flows from, the Mortgaged Property. No Mezzanine Financing or Preferred Equity. Neither Obligor nor any direct or indirect owner of Obligor shall: incur any Mezzanine Debt other than Permitted Mezzanine Debt; issue any Preferred Equity other than Permitted Preferred Equity; or incur any similar indebtedness or issue any similar equity. Mortgage Loan Administration Matters Regarding Liens, Transfers, and Assumptions. Assumption of Mortgage Loan. Lender shall consent to a Transfer of the Mortgaged Property to a new IDOT guarantor and an assumption of the Mortgage Loan by a new borrower if each of the following conditions is satisfied prior to the Transfer: Each Obligor has submitted to Lender all information required by Lender to make the determination required by this Section 11.3(eeeee); no Event of Default has occurred and is continuing, and no event which, with the giving of written notice or the passage of time, or both, would constitute an Event of Default has occurred and is continuing; Lender determines that: the proposed new borrower, new IDOT guarantor, new key principal, and any other new guarantor fully satisfy all of Lender’s then-applicable borrower, IDOT guarantor, key principal, or guarantor eligibility, credit, management, and other loan underwriting standards, which shall include an analysis of the previous relationships between Lender and the proposed new borrower, new IDOT guarantor, new key principal, new guarantor, and any Person in Control of them, and the organization of the new borrower, new IDOT guarantor, new key principal, and new guarantor (if applicable), and the operating and financial performance of the Mortgaged Property, including physical condition and occupancy; none of the proposed new borrower, new IDOT guarantor, new key principal, and any new guarantor, or any owners of the proposed new borrower, new key principal, and any new guarantor, are a Prohibited Person; and none of the proposed new borrower, new key principal, and any new guarantor (if any of such are entities) shall have an organizational existence termination date that ends before the Maturity Date; [reserved]; the proposed new borrower has: executed an assumption agreement acceptable to Lender that, among other things, requires the proposed new borrower to assume and perform all obligations of Borrower (or any other transferor), and that may require that the new borrower comply with any provisions of any Loan Document that previously may have been waived by Lender for Borrower or IDOT Guarantor, subject to the terms of Section 11.3(kkkkk); if required by Lender, delivered to the title company for filing and/or recording in all applicable jurisdictions, all applicable Loan Documents including the assumption agreement to correctly evidence the assumption and the confirmation, continuation, perfection, and priority of the Liens created hereunder and under the other Loan Documents; and delivered to Lender a “date-down” endorsement to the Title Policy acceptable to Lender (or a new title insurance policy if a “date-down” endorsement is not available); one or more individuals or entities acceptable to Lender as new IDOT guarantor or new guarantors have executed and delivered to Lender: an assumption agreement acceptable to Lender that requires the new IDOT guarantor or new guarantor to assume and perform all obligations of IDOT Guarantor or Guarantor, as applicable, under the IDOT Guaranty or any Guaranty given in connection with the entry into additional Incremental Facilities under Mortgage Loan; or a substitute Non-Recourse Guaranty and other substitute guaranty in a form acceptable to Lender; Lender has reviewed and approved the Credit Agreement Transfer documents; and Lender has received the fees described in Section 11.3(kkkkk). Transfers to Key Principal-Owned Affiliates or the Junior Lien Credit AgreementGuarantor-Owned Affiliates. Except as otherwise covered in Section 11.3(fffff)(2) below, Transfers of direct or indirect ownership interests in Obligor to Key Principal or Guarantor, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering a Mortgaged Property, (i) an amendment transferee through which Key Principal or an amendment and restatement thereof (each, a “Mortgage Amendment”) approved by local or foreign counsel Guarantor (as applicable) reasonably acceptable to Controls Obligor with the Administrative Agent, setting forth such changes same rights and abilities as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local Key Principal or foreign counsel Guarantor (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect Controls Obligor immediately prior to the enforceability date of such Transfer, shall be consented to by Lender if such Transfer satisfies the mortgage applicable requirements of Section 11.3(eeeee), other than Section 11.3(eeeee)(5). Transfers of direct or indirect interests in any Obligor held by a Key Principal or Guarantor to other Key Principals or Guarantors, as amendedapplicable, together with shall be consented to by Lender if such other opinions Transfer satisfies the following conditions: the Transfer does not cause a change in the Control of such Obligor; and the transferor Key Principal or Guarantor maintains the same right and ability to Control such Obligor as the Administrative Agent shall require, and in form and substance reasonably acceptable existed prior to the Administrative Agent (it being understood and agreed that Transfer. If the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation conditions set forth in clauses (iithis Section 11.3(fffff) are satisfied, the Transfer Fee shall be waived provided such Obligor shall pay the Review Fee and out-of-pocket costs set forth in Section 11.3(kkkkk), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicable.
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Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent of the The Administrative Agent shall have received (such consent not to be unreasonably withheld or delayedi) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, a Mortgage with respect to each Mortgaged Property listed on Schedule 6.3(g) to the Third Amendment, executed and delivered by a duly authorized officer of Atlantic Broadband (SC), LLC, together with such certificates, affidavits, questionnaires, instruments or returns as shall be reasonably required in connection with filing or recordation thereof and to grant a perfected Mortgage encumbering a Lien on such Mortgaged Property, (iii) an amendment such UCC-1 Financing Statements and other similar statements as are contemplated by such Mortgage, (iii) policies or an amendment certificates of insurance as reasonably required by the Mortgage relating thereto, which policies or certificates shall comply with the insurance requirements contained in subsection 7.5, (iv) evidence reasonably acceptable to the Administrative Agent of payment by Borrower of all mortgage recording taxes, fees, charges, costs and restatement thereof expenses required for the recording of such Mortgage, (eachv) a Lender’s title policy with respect to each such Mortgage paid for by a Credit Party, issued by Title Company, together with such endorsements (including, without limitation, “tie-in” or “cluster”, first loss, last dollar, usury, contiguity, revolving credit, doing business, non-imputation, public road access, survey, variable rate, zoning (provided that with respect to zoning, Borrower may, in lieu of such endorsement, deliver a “Mortgage Amendment”) approved zoning compliance letter prepared by local the appropriate Governmental Authority or foreign counsel (as applicable) a zoning and site requirement summary report prepared by the Planning and Zoning Resource Corporation or other similar service reasonably acceptable to the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property ) and to further grant, preserve, protect, confirm so-called comprehensive coverage over covenants and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texasrestrictions), coinsurance and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except reinsurance as permitted under the Credit Agreement, and in each case in form and substance may be reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of requested by the Administrative Agent with respect to the enforceability of the mortgage as amendedand provided that such endorsements are available in a given jurisdiction, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood Agent, insuring the Mortgage as a first Lien on the relevant Mortgaged Property and subject only to Permitted Encumbrances and such other Liens expressly agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as to by the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that (a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii“Title Policy”), (iiivi) and (iv) above such consents, approvals, estoppels, tenant subordination agreements or other instruments as shall not be required to necessary or appropriate in the extent that local or foreign counsel (as applicable) reasonably acceptable to reasonable judgment of the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the owner or holder of the Fee Property or Leased Property constituting such Mortgaged Property to secure grant the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required Lien contemplated by Regulation H the Mortgage with respect to each such Mortgaged Property reasonably acceptable and (vii) a Survey with respect to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicablesuch Mortgaged Property.
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Mortgaged Property. Within 90 The Borrower shall promptly notify the Lender upon the occurrence of any loss or claim, and, except with respect to amounts less than $10,000, at the Lender's option in each instance, the Lender, to the exclusion of the Borrower, shall have the right and authority to file any proofs of claim and negotiate any adjustment or settlement thereof. Each insurance company is hereby directed and authorized to remit all payments (including the return of unearned premiums) directly to the Lender alone and not to the Borrower or the Borrower and Lender jointly. All insurance policies shall be subject to Lender's reasonable review and approval; shall be written by insurers which are rated at least "A" by Best's Key Rating Guide, authorized to conduct business in the state in which the Mortgaged Property is located, and otherwise acceptable to Lender; shall be first payable in case of loss to the Lender under the standard mortgagee clause, so-called, or its equivalent, provided, that the personal property and liability insurance policies shall designate the Lender as an additional insured; shall contain an agreed amount or waiver of co-insurance endorsement; shall be issued on a replacement cost basis; shall require at least thirty (30) days after written notice to the Incremental Facility Closing Date Lender before cancellation or material coverage reductions; shall include deductible amounts satisfactory to the Lender; and shall contain a so-called lender's loss payable endorsement. The original of all such policies of insurance (or (xcertificates thereof issued by the insurer in form, content and manner of execution satisfactory to the Lender) within 180 days after shall be delivered to the Incremental Facility Closing Date with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit AgreementLender, or (y) by such later date as the Administrative Agent in its sole discretion may permit), and the Borrower shall deliverdeliver to the Lender a new policy (or such a certificate) as replacement for an expiring policy (or such a certificate) required to be deposited hereunder together with proof of payment of the premiums therefor annually at least thirty (30) days before the date of such expiration. The acceptance by the Lender of any insurance policies or certificates it may receive from the Borrower or the Borrower's insurance agent shall not be deemed or construed as an approval by the Lender of the form, sufficiency, or amount of such insurance. The Borrower hereby irrevocably appoints the Lender its true and lawful attorney-in-fact, with full power of substitution, upon an Event of Default, to deal with the insurer with respect to each Mortgage encumbering a Mortgaged Property, (i) an amendment or an amendment and restatement thereof (each, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations all matters arising under the Credit Agreement encumbers such Mortgaged Property and to further grantpolicy, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificateand, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under event the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for Lender forecloses upon the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect assign any policy to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations subsequent owner of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicableMortgaged Property.
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Samples: Loan Agreement (Enclaves Group Inc)
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent Any sale of any part of the Administrative Agent (Mortgaged Property located in the State of Mississippi shall be made after having published notice of the day, time, place and terms of sale in a newspaper published in the county in which the Mortgaged Property is situated for three consecutive weeks preceding the date of sale; and by posting one notice of such consent not sale at the courthouse of the county in which the Mortgaged property is situated for said period of time. The Trustee shall have the power to select the county or judicial district in which the sale shall be unreasonably withheld made, newspaper advertisement published, and notice of sale posted in the event the Mortgaged Property is located in more than one county or delayed) in two judicial districts in the same county. The Trustee in said trust shall have the full power to fix the day, time, place and terms of sale and may appoint or delegate any one or more persons as agent to perform any act or acts necessary or incident to any sale held by the Trustee, including the posting of notices in the conduct of the sale but in the name of and on behalf of the Trustee, his substitute or successor. In connection with the entry into additional Incremental Facilities under foregoing, Mortgagor waives the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering a Mortgaged Property, (i) an amendment or an amendment and restatement thereof (each, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect provisions of each Section 89-1-55 of the Mortgaged Properties (other Mississippi Code of 1972, recompiled and laws amendatory thereto, if any, as far as said section restricts the right of the Trustee to offer at sale more than 160 acres at one time and the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificateTrustee may, in all cases (a) and (b)his discretion, reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for offer the Mortgaged Property to secure as a whole or in such part or parts as he may deem desirable regardless of the Incremental Term Loans manner in which it may be described. Any sale made by the Trustee hereunder may be adjourned by announcement at the time and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance place appointed for such sale without further notice except as may be required by Regulation H with respect to each Mortgaged Property reasonably acceptable to law. Mortgagor also waives the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess provisions of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations Section 89-1-59 of the Loan Parties pursuant Mississippi Code of 1972, recompiled and laws amendatory thereto, insofar as said section allows the Mortgagor to Section 5.9(breinstate an accelerated debt. Mortgagor: QUEEN SAND RESOURCES, INC. By: /s/ Robexx X. Xxxxxxx ----------------------------------- Robexx X. Xxxxxxx Vice President By: /s/ Ronaxx Xxxx ----------------------------------- Ronaxx Xxxx Vice President and Treasurer WITNESSES: ------------------------------ Name: ------------------------------ Name: -------------------------------- Notary Public -21- 26 THE STATE OF TEXAS ) ) COUNTY OF HARRXX ) MISSISSIPPI Personally appeared before me, the undersigned authority in and for said county and state, on this 31st day of July, 1997, within my jurisdiction, the Credit Agreementwithin named Robexx X. Xxxxxxx xxx Ronaxx Xxxx xxx acknowledged that they are the "Vice President" and "Vice President and Treasurer" of QUEEN SAND RESOURCES, INC., a Nevada corporation, and that for and on behalf of said corporation, and as applicableits act and deed, he executed the above and foregoing instrument, after first having been duly authorized by said corporation so to do. NEW MEXICO The foregoing instrument was acknowledged before me on July 31, 1997 by Robexx X. Xxxxxxx, Xxce President, and Ronaxx Xxxx, Xxce President and Treasurer, of QUEEN SAND RESOURCES, INC., a Nevada corporation, on behalf of such corporation. OKLAHOMA This instrument was acknowledged before me on July 31, 1997 by Robexx X. Xxxxxxx, Xxce President, and Ronaxx Xxxx, Xxce President and Treasurer, of QUEEN SAND RESOURCES, INC., a Nevada corporation. TEXAS This instrument was acknowledged before me on July 31, 1997 by Robexx X. Xxxxxxx, Xxce President, and Ronaxx Xxxx, Xxce President and Treasurer, of QUEEN SAND RESOURCES, INC., a Nevada corporation, on behalf of such corporation. ________________________________ Notary Public in and for the State of Texas [SEAL] My commission expires:__________
Appears in 1 contract
Samples: Queen Sand Resources Inc
Mortgaged Property. Within 90 days If, after the Incremental Facility Closing Date Date, the Borrower or any --------- -------- of its Restricted Subsidiaries acquires in any one transaction or a series of related transactions real estate with either a fair market value or acquisition price of more than $1,000,000, and the Borrower or such Restricted Subsidiary, as the case may be, does not sell such real property pursuant to the terms and conditions set forth in (S)9.5.2(f) hereof or refinance the purchase price of such real property pursuant to the terms and conditions set forth in (xS)9.1(o) hereof in either case within 180 days after the Incremental Facility Closing Date with the prior consent of the Administrative Agent (acquiring such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit)real property, the Borrower or such Restricted Subsidiary, as the case may be, shall deliverforthwith deliver to the Agent, with respect to each Mortgage encumbering a Mortgaged Property, (i) an amendment or an amendment and restatement thereof (eachif the Agent so requests, a “Mortgage Amendment”) approved by local fully executed mortgage or foreign counsel deed of trust over such real estate (as applicable) reasonably acceptable to the Administrative Agentwhich shall exclude fixtures, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property furniture and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texasequipment), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, together with title insurance policies, Surveys, Surveyor Certificates, evidences of insurance with the Agent named as loss payee and additional insured, legal opinions and other documents and certificates with respect to such real estate consistent with the Mortgages and related documents delivered hereunder. In addition, if, after the Closing Date, the Borrower or any of its Restricted Subsidiaries leases any real estate and, immediately after giving effect to such lease, a single landlord and/or its affiliates other than BKC owns twenty (iii20) or more pieces of real property leased to the Borrower or any of the Restricted Subsidiaries, the Borrower or such Restricted Subsidiary, as the case may be, shall use commercially reasonable efforts to obtain and deliver to the Agent, if the Agent so requests, a favorable opinion fully executed leasehold mortgage or leasehold deed of local or foreign counsel trust over all such real estate (which shall exclude fixtures, furniture and equipment) owned by such landlord and/or its affiliates, in form and substance satisfactory to the Agent, together with title insurance policies, Surveys, Surveyor Certificates, evidences of insurance with the Agent named as applicable) in each jurisdiction in which a Mortgage Property is located loss payee and additional insured, legal opinions and other documents and certificates with respect to such real estate consistent with the Mortgages and related documents delivered hereunder. The Borrower further agrees that, following the taking of any such actions with respect to such real estate, the Agent shall have for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property Banks and the related documentation set forth in clauses (ii)Agent a valid and enforceable first priority mortgage or deed of trust over such real estate, (iii) free and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order clear of all defects and encumbrances except for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicablePermitted Liens.
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Mortgaged Property. Within 90 days after Subject to the Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent provisions of the Administrative Agent (such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Financing Agreement, or POA (yi) by such later date as shall keep the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering a Mortgaged Property, (i) an amendment or an amendment and restatement thereof (each, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to cause the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property to be kept, in good condition or repair, reasonable wear and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfectedtear excepted; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each shall not commit or permit any waste of the Mortgaged Properties Property; (other than iii) shall not cause or permit any alterations, removal or demolition of the Mortgaged Properties in Texas)Property, and (b) except for the Mortgaged Properties located in Texassuch alterations, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except removal or demolition as may be required or permitted under the Credit Financing Agreement or under Section 1.04 ---- hereof or as may be required by any applicable law, ordinance, rule, regulation or order of any Governmental Authority having jurisdiction over the Mortgaged Property; (iv) shall complete or cause to be completed in good, first class and workmanlike manner, fully paid for and free from Liens, any construction, repair or restoration which may be performed on the Mortgaged Property; (v) shall promptly restore, or cause to be restored, any portion of the Mortgaged Property which may be damaged or destroyed, subject to the provisions of the Financing Agreement, unless the failure to comply with the same would not have a Material Adverse Effect; (vi) shall duly and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent punctually pay all Impositions with respect to the enforceability Property; (vii) shall duly and punctually pay and perform all of its obligations under each of the mortgage as amendedProject Documents unless the failure to comply with its obligations under a Project Document would not have a Material Adverse Effect, together with such other opinions as subject to any applicable grace or cure period provided in the Administrative Agent Financing Agreement; (viii) shall requireduly and punctually, and subject to any applicable grace or cure period provide in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection Financing Agreement, comply with the Closing Date are reasonably acceptablerequirements of all applicable laws, ordinances, rules, regulations, requirements, orders, decrees and judgments of any Governmental Authority having jurisdiction over the Mortgaged Property and with all licenses, permits, franchises, authorizations and agreements (including all Applicable Permits) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment applicable with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property unless the failure to secure comply with the Incremental Term Loans same would not have a Material Adverse Effect; (ix) keep in force and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood effect insurance as required by Regulation H with respect to each the Mortgaged Property reasonably acceptable to as required under the Administrative Agent Financing Agreement; (it being understood x) duly and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection punctually pay the premiums for such insurance; and (xi) duly and punctually comply with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations requirements of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreementapplicable insurance policies, as applicablecompanies and underwriting boards and agencies.
Appears in 1 contract
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent The Lender shall have received, in respect of the Administrative Agent Mortgaged Property, a Mortgage, dated as of the Closing Date, and duly executed and delivered by an Authorized Officer of Borrower, which Mortgage shall be substantially in the form of Exhibit G hereto, and (i)a mortgagee’s title insurance policy or marked up unconditional binder for such consent not insurance, effective as of the Closing Date, together with a current ALTA survey thereof and a surveyor’s certificate, in form reasonably satisfactory to the Lender, provided that such policy shall (A) be unreasonably withheld or delayed) in connection with an amount reasonably satisfactory to the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, Lender with respect to each the Mortgaged Property covered thereby but not less than the fair market value of the Mortgaged Property covered thereby; (B) insure that, as of the Closing Date, the Mortgage encumbering insured thereby creates a Mortgaged Property, (i) an amendment or an amendment and restatement thereof (each, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers valid first Lien on such Mortgaged Property free and clear of all defects and encumbrances, except as disclosed in the Mortgage or as permitted by Section 8.3; (C) name the Lender as the insured thereunder; (D) be in form reasonably satisfactory to further grantthe Lender; (E) contain such endorsements, preservecoinsurance, protectreinsurance and affirmative coverage as the Lender may reasonably request; and (F) be issued by First American Title Insurance Company or such other national title company or companies reasonably satisfactory to the Lender (including any such title companies acting as co-insurers or reinsurers, confirm and perfect at the lien and security interest thereby created and perfectedoption of the Lender); (ii) (a) for evidence satisfactory to it that all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment premiums in respect of each such policy, all charges for mortgage recording tax, and all related expenses, if any, have been paid or duly provided for; and (iii) legal opinions from local counsel in the jurisdiction where the Mortgaged Property is situated and from counsel in the jurisdiction where the owner of the Mortgaged Properties (other than Property is organized relating to the Mortgaged Properties in Texas)matters described above, and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case which opinions shall be in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicableLender.
Appears in 1 contract
Mortgaged Property. Within 90 days after Receipt by the Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent Collateral Agent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit), the Borrower shall deliver, with respect to each Mortgage encumbering a Mortgaged Property, (i) an amendment or an amendment fully executed counterparts of amended and restatement thereof restated Mortgages on the Real Properties identified on Schedule 6.01(f) (each, a “the "Mortgage Amendment”Amendments") approved by local or foreign counsel (as applicable) in form and substance reasonably acceptable satisfactory to the Administrative Collateral Agent, setting forth such changes as which are reasonably necessary or, in the reasonable opinion of the Collateral Agent, desirable to reflect effectively maintain a valid and enforceable first priority mortgage lien that secures the lien securing the Obligations under the Credit Agreement encumbers such facilities provided for herein on each Mortgaged Property and (subject only to further grantPermitted Encumbrances) in favor of the Collateral Agent (or such other trustee as may be required or desired under local law) for the benefit of the Secured Creditors, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for copies of all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect existing ALTA surveys of each of the Mortgaged Properties by registered engineers or land surveyors in the possession of the Borrower, (iii) copies of all existing appraisals of the Mortgaged Properties, (iv) copies of existing environmental reports and other than environmental documentation, if any, relating to the Mortgaged Properties in Texasthe possession of the Borrower, (v) evidence satisfactory to the Collateral Agent that counterparts of each Mortgage Amendment have been delivered to the title company insuring the mortgage liens for recording, (vi) either endorsements to the existing Mortgage Policies or new Mortgage Policies assuring the Collateral Agent that each Mortgage Amendment creates a valid and 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 in an area designated by the Federal Emergency Management Agency as having flood or mud slide hazards (a "Flood Hazard Property") and (y) if any Mortgaged Property is a Flood Hazard Property, (1) whether the community in which such Mortgaged Property is located is participating in the National Flood Insurance Program and (2) the applicable Credit Party's written acknowledgment of receipt of written notification from the Administrative Agent (a) as to the fact that such Mortgaged Property is a Flood Hazard Property and (b) for as to whether the Mortgaged Properties community in which each such Flood Hazard Property is located is participating in Texas, a nothing further certificate, in all cases (a) the National Flood Insurance Program and (b)viii) from local counsel satisfactory to the Collateral Agent, reflecting that there are no encumbrances affecting opinions each of which (x) shall be addressed to the Mortgaged Properties except as permitted under Administrative Agent, the Credit AgreementCollateral Agent and each of the Lenders, and in each case (y) shall be in form and substance reasonably satisfactory to the Administrative Agent, Agent and (iiiz) a favorable opinion shall cover the perfection of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect security interests granted pursuant to the enforceability of the mortgage as amended, together with Mortgage Amendments and such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable matters incident to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements transactions contemplated herein as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicablerequest.
Appears in 1 contract
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (Borrower shall not Transfer, or (x) within 180 days after the Incremental Facility Closing Date with the prior consent cause or permit a Transfer of, all or any part of the Administrative Agent Mortgaged Property (such consent not including any interest in the Mortgaged Property) other than: a Transfer to be unreasonably withheld which Lender has consented in writing; Leases permitted pursuant to the Loan Documents; [reserved]; a Transfer of obsolete or delayed) worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with the entry into additional Incremental Facilities under the Credit Agreement reviewing Borrower’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 11.2(yyyy) of this Loan Agreement; or the Junior Lien Credit Agreementconveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, Key Principal, or (y) by such later date as the Administrative Agent Guarantor. Other than a Transfer to which Lender has consented in its sole discretion may permit)writing, the Borrower shall delivernot Transfer, with respect or cause or permit to each Mortgage encumbering be Transferred: any direct or indirect ownership interest in Borrower, Key Principal, or Guarantor (if applicable) if such Transfer would cause a Mortgaged Propertychange in Control; a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor (iif applicable); fifty percent (50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower that existed on the Effective Date (individually or on an amendment aggregate basis); or an amendment and restatement thereof the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, Key Principal, or Guarantor (eachif applicable) separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement. Notwithstanding the foregoing, if a Publicly-Held Corporation or a Publicly-Held Trust Controls Borrower, Key Principal, or Guarantor, or owns a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor, a “Mortgage Amendment”Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Borrower provides written notice to Lender not later than thirty (30) approved days thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the ownership interests in such Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Transfers of direct or indirect limited partnership or non-managing member interests in Borrower that result in a Transfer of fifty percent (50%) or more of the limited partnership or non-managing membership interests shall be consented to by local Lender if such Transfer satisfies the following conditions: Key Principal or foreign counsel Guarantor (as applicable) reasonably acceptable to Controls Borrower with the Administrative Agent, setting forth such changes same rights and abilities as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local Key Principal or foreign counsel Guarantor (as applicable) in each jurisdiction in which a Mortgage Property is located for Controls Borrower immediately prior to the benefit date of such Transfer; such Transfer satisfies the requirements of Section 11.2(zzzz)(9)(J); Borrower shall provide Lender not less than thirty (30) days prior written notice of the Administrative Agent proposed Transfer and obtain Lender’s approval; Borrower shall provide with respect its notice to Lender an organizational chart reflecting, and all organizational documents relevant to, the enforceability proposed Transfer; Borrower shall provide with its notice to Lender a certification that no change of Control of Borrower or Key Principal shall occur as a result of such Transfer; the transferee shall not be, as of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance date of the opinions delivered Transfer, a Prohibited Person if, as a result of the Transfer, the transferee will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower (or, if any other investor will own twenty-five percent (25%) or more of the direct or indirect ownership interests in Borrower that did not own twenty-five percent (25%) or more before the Transfer, such investor shall not, as of the date of the Transfer, be a Prohibited Person); Borrower shall pay to Lender: concurrently with its notice to Lender, the Review Fee plus a Transfer Fee of $25,000; and upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred by Lender in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens its review of the Mortgages Transfer request; and Borrower shall execute upon demand such documents or certifications as amendedLender reasonably requires in order to confirm the post-transfer ownership structure, compliance with the stated conditions, and any other relevant factual matter. Name Change or Entity Conversion. Converting from one type of legal entity into another type of legal entity for any lawful purpose shall require Lender’s prior written consent. Lender shall consent to Borrower changing its name or changing its jurisdiction of organization provided that: Lender receives written notice at least thirty (30) days prior to such change or conversion, which notice shall include organizational charts that reflect the structure of Borrower both prior to and subsequent to such name change; providedsuch Transfer is not otherwise prohibited under the provisions of Section 11.2(zzzz)(9); Borrower executes an amendment to this Loan Agreement and any other Loan Documents required by Lender documenting the name change; Borrower agrees and acknowledges, at Borrower’s expense, that a Mortgage Amendment Borrower will execute and record in the land records any instrument required by the Property Jurisdiction to be recorded to evidence such name change (or provide Lender with respect to any particular Mortgaged Property and written confirmation from the related documentation set forth in clauses title company (iivia electronic mail or letter) that no such instrument is required), (iii) Borrower will execute any additional documents required by Lender, including the amendment to this Loan Agreement, and (iv) above shall not allow such documents to be required recorded or filed in the land records of the Property Jurisdiction, Lender will obtain a “date down” endorsement to the extent that local Lender’s Title Policy (or foreign counsel (as applicable) reasonably acceptable obtain a new Title Policy if a “date down” endorsement is not available in the Property Jurisdiction), evidencing title to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property being in the name of the successor entity and the Lien of the Security Instrument against the Mortgaged Property, and Lender will file any required UCC-3 financing statement and make any other filing deemed necessary to secure maintain the Incremental Term Loans priority of its Liens on the Mortgaged Property; and other extensions of credit thereunder. The no later than ten (10) days subsequent to such name change, Borrower shall also provide flood determinations Lender the documentation filed with the appropriate office in Borrower’s state of formation evidencing such name change, copies of the organizational documents of Borrower, including any amendments, filed with the appropriate office in Borrower’s state of formation reflecting the post-conversion Borrower name, form of organization, and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable structure, and if available, new certificates of good standing or valid formation for Borrower. No Delaware Statutory Trust or Series LLC Conversion. Notwithstanding any provisions herein to the Administrative Agent (it being understood and agreed that Borrower contrary, no Borrower, Guarantor, or Key Principal shall not be required convert to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend a Delaware Statutory Trust or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicablea series limited liability company.
Appears in 1 contract
Mortgaged Property. Within 90 days If, after the Incremental Facility Closing Date Date, the Borrower or any of its Restricted Subsidiaries acquires in any one transaction or a series of related transactions real estate with either a fair market value or acquisition price of more than $2,000,000, and the Borrower or such Restricted Subsidiary, as the case may be, does not sell such real property pursuant to the terms and conditions set forth in (S)9.5.2(f) hereof or refinance the purchase price of such real property pursuant to the terms and conditions set forth in (xS)9.1(o) hereof in either case within 180 days after the Incremental Facility Closing Date with the prior consent of the Administrative Agent (acquiring such consent not to be unreasonably withheld or delayed) in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date as the Administrative Agent in its sole discretion may permit)real property, the Borrower or such Restricted Subsidiary, as the case may be, shall deliverforthwith deliver to the Agent, with respect to each Mortgage encumbering a Mortgaged Property, (i) an amendment or an amendment and restatement thereof (eachif the Agent so requests, a “Mortgage Amendment”) approved by local fully executed mortgage or foreign counsel deed of trust over such real estate (as applicable) reasonably acceptable to the Administrative Agentwhich shall exclude fixtures, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property furniture and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texasequipment), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, together with title insurance policies, surveys, evidences of insurance with the Agent named as loss payee and additional insured, legal opinions and other documents and certificates with respect to such real estate consistent with the Mortgages and related documents delivered hereunder. In addition, if, after the Closing Date, the Borrower or any of its Restricted Subsidiaries leases any real estate and, immediately after giving effect to such lease, a single landlord and/or its affiliates other than BKC owns twenty (iii20) or more pieces of real property leased to the Borrower or any of the Restricted Subsidiaries, the Borrower or such Restricted Subsidiary, as the case may be, shall use commercially reasonable efforts to obtain and deliver to the Agent, if the Agent so requests, a favorable opinion fully executed leasehold mortgage or leasehold deed of local or foreign counsel trust over all such real estate (which shall exclude fixtures, furniture and equipment) owned by such landlord and/or its affiliates, in form and substance satisfactory to the Agent, together with title insurance policies, surveys, evidences of insurance with the Agent named as applicable) in each jurisdiction in which a Mortgage Property is located loss payee and additional insured, legal opinions and other documents and certificates with respect to such real estate consistent with the Mortgages and related documents delivered hereunder. The Borrower further agrees that, following the taking of any such actions with respect to such real estate, the Agent shall have for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property Banks and the related documentation set forth in clauses (ii)Agent a valid and enforceable first priority mortgage or deed of trust over such real estate, (iii) free and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order clear of all defects and encumbrances except for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreement, as applicablePermitted Liens.
Appears in 1 contract
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (Borrower shall not Transfer, or (x) within 180 days after the Incremental Facility Closing Date with the prior consent cause or permit a Transfer of, all or any part of the Administrative Agent Mortgaged Property (such consent not including any interest in the Mortgaged Property) other than: a Transfer to be unreasonably withheld which Lender has consented in writing; Leases permitted pursuant to the Loan Documents; [reserved]; a Transfer of obsolete or delayed) worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with the entry into additional Incremental Facilities under the Credit Agreement reviewing Borrower’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 11.2(yyyy) of this Loan Agreement; or the Junior Lien Credit Agreementconveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, Key Principal, or (y) by such later date as the Administrative Agent Guarantor. Other than a Transfer to which Lender has consented in its sole discretion may permit)writing, the Borrower shall delivernot Transfer, with respect or cause or permit to each Mortgage encumbering be Transferred: any direct or indirect ownership interest in Borrower, Key Principal, or Guarantor (if applicable) if such Transfer would cause a Mortgaged Propertychange in Control; a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor (iif applicable); fifty percent (50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower that existed on the Effective Date (individually or on an amendment aggregate basis); or an amendment and restatement thereof the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, Key Principal, or Guarantor (eachif applicable) separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement. Notwithstanding the foregoing, if a Publicly-Held Corporation or a Publicly-Held Trust Controls Borrower, Key Principal, or Guarantor, or owns a direct or indirect Restricted Ownership Interest in Borrower, Key Principal, or Guarantor, a “Mortgage Amendment”Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Borrower provides written notice to Lender not later than thirty (30) approved days thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the ownership interests in such Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Transfers of direct or indirect limited partnership or non-managing member interests in Borrower that result in a Transfer of fifty percent (50%) or more of the limited partnership or non-managing membership interests shall be consented to by local Lender if such Transfer satisfies the following conditions: Key Principal or foreign counsel Guarantor (as applicable) reasonably acceptable to Controls Borrower with the Administrative Agent, setting forth such changes same rights and abilities as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local Key Principal or foreign counsel Guarantor (as applicable) in each jurisdiction in which a Mortgage Property is located for Controls Borrower immediately prior to the benefit date of such Transfer; such Transfer does not violate the requirements of Section 11.2(zzzz)(10)(J); Borrower shall provide Lender not less than thirty (30) days prior written notice of the Administrative Agent proposed Transfer and obtain Lender’s approval; Borrower shall provide with respect its notice to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall requireLender an organizational chart reflecting, and in form and substance reasonably acceptable all organizational documents relevant to, the proposed Transfer; Borrower shall provide with its notice to the Administrative Agent (it being understood and agreed Lender a certification that the form and substance no change of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documentsControl of Borrower, instrumentsKey Principal, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel Guarantor (as applicable) reasonably acceptable to shall occur as a result of such Transfer; the Administrative Agent has confirmed transferee shall not be, as of the date of the Transfer, a Prohibited Person if, as a result of the Transfer, the transferee will own twenty-five percent (25%) or more of the direct or indirect ownership interests in an eBorrower (and, if any other investor will own twenty-mail five percent (25%) or more of the direct or indirect ownership interests in Borrower that no Mortgage Amendment is required in order for did not own twenty-five percent (25%) or more before the Mortgaged Property to secure Transfer, such investor shall not, as of the Incremental Term Loans and other extensions date of credit thereunder. The the Transfer, be a Prohibited Person); Borrower shall also provide flood determinations pay to Lender: concurrently with its notice to Lender, the Review Fee plus a transfer fee of $25,000, which shall be in lieu of any other Transfer Fee; and flood insurance as required upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided Lender in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations its review of the Loan Parties pursuant Transfer request; and Borrower shall execute upon demand such documents or certifications as Lender reasonably requires in order to Section 5.9(b) of confirm the Credit Agreementpost-transfer ownership structure, as applicablecompliance with the stated conditions, and any other relevant factual matter.
Appears in 1 contract
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (or (x) within 180 days after the Incremental Facility Closing Date with the prior consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) Except in connection with the entry into additional Incremental Facilities under the Credit Agreement or the Junior Lien Credit Agreement, or (y) by such later date each case as the Administrative Agent in its sole discretion may permit), the Borrower shall deliverset forth on Schedule 6.10, with respect to each Mortgage encumbering a Mortgaged PropertyMortgage, (i) an amendment or an amendment each Loan Party and restatement thereof (eacheach of their respective Subsidiaries, a “Mortgage Amendment”) approved by local or foreign counsel (as applicable) reasonably acceptable to , is the Administrative Agent, setting forth such changes as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each lawful owner of the Mortgaged Properties (other than Property described therein and has good right and authority to grant, bargain, sell, transfer, assign and mortgage the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local or foreign counsel (as applicable) in each jurisdiction in which a Mortgage Property is located for the benefit of the Administrative Agent with respect to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall require, and in form and substance reasonably acceptable to the Administrative Agent (it being understood and agreed that the form and substance of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documents, instruments, acts or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amendedsame; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel (as applicable) reasonably acceptable to the Administrative Agent has confirmed in an e-mail that no Mortgage Amendment is required in order for the Mortgaged Property to secure the Incremental Term Loans and other extensions of credit thereunder. The Borrower shall also provide flood determinations and flood insurance as required by Regulation H with respect to each Mortgaged Property reasonably acceptable described in Exhibit A to each Mortgage, its interests in each such Mortgaged Property is no less than that Net Revenue Interest and no greater than the Administrative Agent Working Interest set forth in Exhibit A to such Mortgage for such Mortgaged Property; all oil, gas and/or mineral lease and leasehold estates, gas purchase and sales contracts, pipeline easements and rights-of-way, processing contracts, franchises, licenses and other agreements comprising or relating to such Mortgaged Property or any portion thereof are valid and subsisting and are in full force and effect and, except as described on Schedule 6.18, no default now exists under such estates, contracts, easements, rights-of-way, franchises, licenses or other agreements and none of Borrower, any other Loan Party or their respective Subsidiaries has (it being understood a) received any notice of default or claimed default thereunder and agreed that Borrower shall not be required (b) any knowledge of any event or circumstance which with notice or passage of time or both could constitute a default thereunder; such leases are subject to provide no overriding royalties or other burdens or charges, except as reflected herein or in the Exhibit A to such Mortgage and, except as described on Schedule 6.18, all material rents, royalties and other payments due and payable by any information in excess Loan Party or any of that which was provided in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations of the Loan Parties pursuant to Section 5.9(b) of the Credit Agreementtheir respective Subsidiaries, as applicable, under such Mortgaged Property have been properly and timely paid and all ad valorem, property, oil and gas production, excise and severance taxes payable by any Loan Party or any of their respective Subsidiaries, as applicable, have been duly paid; such Mortgaged Property is free and clear from all Liens except the Permitted Liens, and except as shown in Exhibit A for such Mortgage; all producing xxxxx located on such Mortgaged Property or properties unitized therewith have been legally drilled in all material respects and are not deviated in any material respect from the vertical more than the maximum permitted by applicable laws, rules and regulations, and such xxxxx are in fact bottomed under and are producing from lands and, if applicable, depths described in said Exhibit A or lands unitized therewith.
Appears in 1 contract
Mortgaged Property. Within 90 days after the Incremental Facility Closing Date (Borrower shall not Transfer, or (x) within 180 days after the Incremental Facility Closing Date with the prior consent cause or permit a Transfer of, all or any part of the Administrative Agent Mortgaged Property (such consent not including any interest in the Mortgaged Property) other than: a Transfer to be unreasonably withheld which Lender has consented in writing; Leases permitted pursuant to the Loan Documents, including the Master Lease between Borrower and Master Lessee and the subordination thereof to the terms, provisions, and lien of this Loan Agreement, the Security Instrument, and the other Loan Documents; [reserved]; a Transfer of obsolete or delayed) worn out Personalty or Fixtures that are contemporaneously replaced by items of equal or better function and quality which are free of Liens (other than those created by the Loan Documents); the grant of an easement, servitude, or restrictive covenant to which Lender has consented, and Borrower has paid to Lender, upon demand, all costs and expenses incurred by Lender in connection with the entry into additional Incremental Facilities under the Credit Agreement reviewing Borrower’s request (including reasonable attorneys’ fees and a $5,000 review fee, which shall be in lieu of any other Review Fee or Transfer Fee); a lien permitted pursuant to Section 1.12(a) of this Loan Agreement; or the Junior Lien Credit Agreementconveyance of the Mortgaged Property following a Foreclosure Event. Interests in Borrower, Master Lessee, Key Principal, or Guarantor. Other than a Transfer to which Lender has consented in writing, Borrower shall not Transfer, or cause or permit to be Transferred: any direct or indirect ownership interest in Borrower, Master Lessee, Key Principal, or Guarantor (yif applicable) if such Transfer would cause a change in Control except that, in connection with any Springing Transaction, the Person holding a direct Restricted Ownership Interest in Borrower immediately prior to such Springing Transaction may receive, in place of its Restricted Ownership Interest in Borrower, a Restricted Ownership Interest of a corresponding nature in the Springing LLC; a direct or indirect Restricted Ownership Interest in Borrower, Master Lessee, Key Principal, or Guarantor (if applicable) except in connection with a Springing Transfer; fifty percent (50%) or more of Key Principal’s or Guarantor’s direct or indirect ownership interests in Borrower or Master Lessee that existed on the Effective Date (individually or on an aggregate basis); any direct or indirect ownership interest in Borrower, Key Principal, or Guarantor (if applicable) if such transfer would result in a violation of Section 1.07(b); or the economic benefits or rights to cash flows attributable to any ownership interests in Borrower, Master Lessee, Key Principal, or Guarantor (if applicable) separate from the Transfer of the underlying ownership interests if the Transfer of the underlying ownership interest is prohibited by this Loan Agreement. Notwithstanding the foregoing, if a Publicly-Held Corporation or a Publicly-Held Trust Controls Borrower, Master Lessee, Key Principal, or Guarantor, or owns a direct or indirect Restricted Ownership Interest in Borrower, Master Lessee, Key Principal, or Guarantor, a Transfer of any ownership interests in such Publicly-Held Corporation or Publicly-Held Trust shall not be prohibited under this Loan Agreement as long as such Transfer does not result in a conversion of such Publicly-Held Corporation or Publicly-Held Trust to a privately held entity, and Borrower provides written notice to Lender not later date as than thirty (30) days thereafter of any such Transfer that results in any Person owning ten percent (10%) or more of the Administrative Agent ownership interests in its sole discretion may permitsuch Publicly-Held Corporation or Publicly-Held Trust. Transfers of Non-Controlling Interests. Subject to the restrictions on beneficial interest ownership transfers set forth in Section 1.13(h)(2), Transfers of direct or indirect beneficial ownership, limited partnership or non-managing member interests in Borrower or Master Lessee that result in a Transfer of fifty percent (50%) or more of the Borrower beneficial ownership, limited partnership or non-managing membership interests shall deliver, with respect be consented to each Mortgage encumbering a Mortgaged Property, (i) an amendment by Lender if such Transfer satisfies the following conditions: Key Principal or an amendment and restatement thereof (each, a “Mortgage Amendment”) approved by local or foreign counsel Guarantor (as applicable) reasonably acceptable to Controls Borrower or Master Lessee, as applicable, with the Administrative Agent, setting forth such changes same rights and abilities as are reasonably necessary to reflect that the lien securing the Obligations under the Credit Agreement encumbers such Mortgaged Property and to further grant, preserve, protect, confirm and perfect the lien and security interest thereby created and perfected; (ii) (a) for all Mortgaged Properties other than those located in Texas, date down and modification endorsements to the mortgagee’s title policies reflecting the Mortgage Amendment in respect of each of the Mortgaged Properties (other than the Mortgaged Properties in Texas), and (b) for the Mortgaged Properties located in Texas, a nothing further certificate, in all cases (a) and (b), reflecting that there are no encumbrances affecting the Mortgaged Properties except as permitted under the Credit Agreement, and in each case in form and substance reasonably satisfactory to the Administrative Agent, (iii) a favorable opinion of local Key Principal or foreign counsel Guarantor (as applicable) in each jurisdiction in which a Mortgage Property is located for Controls Borrower immediately prior to the benefit date of such Transfer; such Transfer does not violate the requirements of Section 1.12(b)(2)(C) or Section 1.12(b)(2)(D); Borrower shall provide Lender not less than thirty (30) days prior written notice of the Administrative Agent proposed Transfer and obtain Lender’s approval; Borrower shall provide with respect its notice to the enforceability of the mortgage as amended, together with such other opinions as the Administrative Agent shall requireLender an organizational chart reflecting, and in form and substance reasonably acceptable all organizational documents relevant to, the proposed Transfer; Borrower shall provide with its notice to the Administrative Agent (it being understood and agreed Lender a certification that the form and substance no change of the opinions delivered in connection with the Closing Date are reasonably acceptable) and (iv) such further documentsControl of Borrower, instrumentsMaster Lessee, acts Key Principal, or agreements as the Administrative Agent may reasonably request to affirm, secure, renew or perfect the liens of the Mortgages as amended; provided, that a Mortgage Amendment with respect to any particular Mortgaged Property and the related documentation set forth in clauses (ii), (iii) and (iv) above shall not be required to the extent that local or foreign counsel Guarantor (as applicable) reasonably acceptable to shall occur as a result of such Transfer; if any Person will own twenty-five percent (25%) or more of the Administrative Agent has confirmed direct or indirect ownership interests in an eBorrower that did not own twenty-mail that no Mortgage Amendment is required in order for five percent (25%) or more before the Mortgaged Property to secure Transfer, such Person shall not, as of the Incremental Term Loans and other extensions date of credit thereunder. The the Transfer, be a Prohibited Person; Borrower shall also provide flood determinations pay to Lender: concurrently with its notice to Lender, the Review Fee plus a transfer fee of $25,000, which shall be in lieu of any other Transfer Fee; and flood insurance as required upon demand, any out-of-pocket costs and expenses, including reasonable attorneys’ fees and expenses, incurred by Regulation H with respect to each Mortgaged Property reasonably acceptable to the Administrative Agent (it being understood and agreed that Borrower shall not be required to provide any information in excess of that which was provided Lender in connection with the Closing Date). Nothing herein shall serve to amend or affect in any way the obligations its review of the Loan Parties pursuant Transfer request; and Borrower and Master Lessee shall execute upon demand such documents or certifications as Lender reasonably requires in order to Section 5.9(b) of confirm the Credit Agreementpost-transfer ownership structure, as applicablecompliance with the stated conditions, and any other relevant factual matter. [Intentionally Omitted].
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