CONDITIONS TO THE FIRST ADVANCE. As a condition precedent to the first Advance hereunder, Borrower must satisfy the conditions required hereby and set forth elsewhere in this Agreement and deliver to Lender, the documents, certificates, and other items that are set forth below, together with such other documents, instruments, and certificates as Lender, or its legal counsel, may require from time to time: (a) The Origination Fee; (b) The Loan Documents duly executed and in recordable form by Borrower and, other parties thereto, if applicable; (c) A commitment for issuance of a mortgagee's title insurance policy, in form and content satisfactory to Lender, to be obtained at Borrower's expense insuring that the Mortgage constitutes a valid first Lien in the Property, free and clear of all defects and encumbrances except such as Lender shall approve, and naming Lender as insured mortgagee, issued by the Title Company, in the maximum principal amount of the indebtedness owing or to be owing to Lender on account of the Loan, with no exceptions or exclusions other than as may be approved by Lender and containing any endorsements required by Lender. Said policy shall contain a pending disbursements clause in form and substance satisfactory to Lender's legal counsel; (d) Current survey of the Property prepared in compliance with standards established by Lender and certified to the benefit of Lender and the Title Company, by a duly registered land surveyor or engineer, acceptable to Lender, which survey shall show all courses and distances, dimensions, the area in square feet, street and setback lines, existing improvements and other details reasonably required by Lender or which may be necessary to show that there are no encroachments, easements, rights-of-way, building code or zoning violations or that the Property does not lie within a flood hazard area or 404(b) wetlands or other defects affecting marketability or insurability, which survey shall show no encroachment of the foundation for the Improvements on any boundary line, easement, building set back line, or other restricted area. The survey shall be revised upon completion of construction so as to show the Improvements and all appurtenances, "as built", in accordance with any requirements of Lender;
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Sources: Loan Agreement (Behringer Harvard Short Term Opportunity Fund I Lp)
CONDITIONS TO THE FIRST ADVANCE. As a condition precedent The obligation of the Term Lenders to make available the First Advance is subject to the first Advance hereunderfulfillment, Borrower must satisfy to the conditions required hereby satisfaction of Agent and set forth elsewhere in this Agreement and deliver its counsel, not less than three (3) Banking Days prior to Lender, the documents, certificatesdate thereof, and other items that are set forth belowto the continued fulfillment of each such condition on the date of such Advance as if made on each such date, together with such other documents, instruments, and certificates as Lender, or its legal counsel, may require from time to timeof each of the following:
(a) The Origination Feedocuments set forth in Exhibit E to this Agreement shall have been duly executed and delivered by the party or parties thereto and shall in all respects be satisfactory in form and substance to Agent;
(b) The There shall have been no material adverse change in the condition (financial or otherwise) of Borrower or any other party to any of the Loan Documents duly executed Instruments or Project Documents, that would materially adversely affect the ability of Borrower to repay the Term Loan, there shall have been no material adverse change in the security interests of the Term Lenders in the Collateral or the Pledged Collateral (as defined in such agreements), and there shall have been no material adverse change in recordable form the financial prospects, likely profitability, or likely financial performance of the Facility from the date of this Agreement that would impair the ability of Borrower to meet its obligations hereunder, all as determined in good faith by Borrower and, other parties thereto, if applicableAgent;
(c) A commitment for issuance of a mortgagee's title insurance policy, The representations and warranties contained in form Article 3 hereof shall be true on and content satisfactory to Lender, to be obtained at Borrower's expense insuring that the Mortgage constitutes a valid first Lien in the Property, free and clear of all defects and encumbrances except such as Lender shall approve, and naming Lender as insured mortgagee, issued by the Title Company, in the maximum principal amount of the indebtedness owing or to be owing to Lender on account date of the LoanFirst Advance; there shall exist on the date of the First Advance no Default or Event of Default under this Agreement; and Borrower shall deliver to Agent a duly executed certificate, with no exceptions or exclusions other than as may be approved by Lender and containing any endorsements required by Lender. Said policy shall contain a pending disbursements clause satisfactory in form and substance satisfactory to Lender's legal counselAgent, dated the date of the First Advance to both such effects;
(d) Current survey Borrower shall have opened the Debt Protection Account and deposited One Million dollars ($1,000,000) therein;
(e) Neither the execution and delivery and compliance with the terms of this Agreement nor Borrower's ownership or operation of the Property prepared in Facility will cause Borrower, Agent or Term Lenders to become subject to regulation by any Governmental Authority as a "public utility," an "electric utility," an "electric utility holding company," a "public utility holding company," or an "electrical corporation" under any Law or Governmental Requirements (including, without limitation, the Public Utility Holding Company Act of 1935, the Federal Power Act and the Public Utility Regulatory Policies Act of 1978, each as amended);
(f) The execution and delivery and compliance with standards established by Lender the terms of this Agreement shall not violate any applicable Law or Governmental Requirement;
(g) The Security Documents and the delivery of the Pledged Collateral, as defined in such documents, shall have created, as security for the obligations of Borrower hereunder and under the Term Notes, valid and perfected first-priority security interests in and liens on the collateral described therein with priority dating from the date of this Agreement;
(h) The Facility shall be a "Qualifying Cogeneration Facility," as such term is defined in the Public Utility Regulatory Policies Act of 1978, as amended, and Borrower shall have self-certified as a Qualifying Cogeneration Facility or shall have obtained a FERC Qualifying Facility Certificate, in full force and effect on the date of the First Advance, from the Federal Energy Regulatory Commission. The Facility, the Property, Borrower and Fina (with respect to the benefit of Lender Property) shall be in full compliance with all Governmental Requirements including, without limitation, all applicable environmental, pollution control and ecological laws, ordinances, rules and regulations. The applicable environmental protection agency, pollution control board and/or other Governmental Authorities having jurisdiction over the Property and the Title CompanyFacility shall have issued all permits required to be obtained as of such date for the operation of the Facility, and there shall be no impediment to procurement of all other permits when required;
(i) Each of TUEC and Fina shall have executed and delivered to Borrower a certificate, in form and substance reasonably satisfactory to Agent, not earlier than fifteen (15) days prior to the date of the First Advance, attesting that the TUEC Agreement or the Steam Agreement, as the case may be, is in full force and effect;
(j) Agent shall have received an Operating Budget from Borrower, reasonably acceptable in form and substance to Agent and Independent Engineer;
(k) Borrower shall have opened the Maintenance Reserve Account and deposited Four Hundred Thousand dollars ($400,000) therein;
(l) Borrower shall have contracted, in the aggregate, for either (i) a minimum of 12,800,000 MM BTUs for each year of this Agreement or (ii) such amount of natural gas as may from time to time be reasonably deemed necessary by the Co-Managers, after consultation with Borrower, or as Borrower may reasonably recommend, subject to the reasonable approval of the Co-Managers in consultation with the Independent Engineer, to meet in a timely manner all of its obligations under the TUEC Agreement and this Agreement (the "Base Requirement"). The Base Requirement may be provided from one or more of the following sources:
(i) National Gas Clearinghouse Inc., pursuant to that certain contract, dated as of December 11, 1986, by a duly registered land surveyor and between National Gas Clearinghouse Inc. and FSOC, as the same has been assigned and may be amended from time to time;
(ii) Certain Qualified gas reserves currently owned or engineercontrolled by FSGC and more fully described on Exhibit G hereto, acceptable which, if owned, shall be pledged or, if controlled, shall be dedicated to Lender, which survey shall show all courses the Facility until such time and distances, dimensionsto the extent necessary to fulfill the Base Requirement. For purposes of this Section 2.3(m), the area in square feet, street term "Qualified" shall mean such natural gas reserves or natural gas supply arrangements as are reasonably approved by the Independent Engineer and setback lines, existing improvements and other details reasonably required by Lender or which may be necessary to show that there are no encroachments, easements, rights-of-way, building code or zoning violations or that the Property does not lie within a flood hazard area or 404(b) wetlands or other defects affecting marketability or insurability, which survey shall show no encroachment of the foundation for the Improvements on any boundary line, easement, building set back line, or other restricted area. The survey shall be revised upon completion of construction so as to show the Improvements and all appurtenances, "as built", in accordance with any requirements of Lender;Agent; and
Appears in 1 contract
CONDITIONS TO THE FIRST ADVANCE. As a condition precedent to the first Advance hereunderhereunder (the "First Advance"), Borrower must satisfy the conditions required hereby and set forth elsewhere in this Agreement and deliver to Lender, the documents, certificates, and other items that are set forth below, together with such other documents, instruments, and certificates as Lender, or its legal counsel, may require from time to time:
(a) The Origination Fee;
(b) The Loan Documents duly executed and in recordable form by Borrower and, other parties thereto, if applicable;
(c) The irrevocable commitment of the Title Company to issue the Title Policy in the normal course of business after the payment of the premiums for such policy;
(d) The survey of the Property, dated April 1, 2003 and last updated on December 10, 2004, and issued by ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Inc., a copy of which has previously been delivered to Lender, and a certification to the benefit of Lender and the Title Company by a duly registered land surveyor or engineer reasonably acceptable to Lender;
(e) The Assignment of Contracts together with the consent of the Architect and Contractor and any other such party to the assignment thereof;
(f) The insurance policies or certificates of such insurance policies as specified in Section 4.13 herein;
(g) A commitment list of the names and addresses of all parties to Major Contracts, together with, if requested by Lender, true and correct copies of all executed contracts and subcontracts;
(h) The Financial Statements;
(i) All governmental permits and approvals necessary or appropriate to complete development and construction of the Project which have been issued as of the date hereof, all of which are to be assigned to Lender as additional security for issuance the Loan, in such manner as shall be acceptable to Lender's legal counsel;
(j) Estoppel Certificate and SNDA in form and substance reasonably acceptable to Lender, from the MOB Tenant;
(k) Evidence that all approvals required under the zoning and property use laws and ordinances applicable to the Property (including any necessary rezoning or other changes in the property use classifications of the Property) and all approvals required under State and local Property subdivision laws and ordinances to acquire the Property in compliance with such laws and ordinances have been obtained and have been or will be complied with;
(l) Evidence that tap permits or "connections" for water and sanitary sewer service to the Property have been obtained or requested;
(m) Evidence that all of the streets providing access to the Property either have been dedicated to public use or established by private easement, duly recorded in the records of the County in which the Property is located, and have been fully installed and accepted by the applicable Governmental Authority, with all costs and expenses of the installation and acceptance thereof having been paid in full, and that there are no restrictions on the use and enjoyment of such streets that adversely affect, limit, or impair Borrower's ability to develop and construct the Property or operate the Property for the purposes and in the manner represented to Lender;
(n) Evidence of the availability for hook-up at the boundaries of the Property of all utilities and other related services to the Property including specifically, but without limitation, gas, electricity, telephone, waste removal, water services and storm and sanitary sewer facilities;
(o) Evidence reasonably satisfactory to Lender's legal counsel that all necessary action on the part of Borrower has been taken with respect to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, so that this Agreement and all Loan Documents to be executed and delivered by or on behalf of Borrower will be valid and binding upon Borrower or the person or entity executing and delivering such document in accordance with its terms. Such evidence shall include the legal opinion of legal counsel for Borrower, as reasonably approved by Lender, and covering such other matters as Lender may reasonably require in form and content reasonably acceptable to Lender's legal counsel and containing no exceptions other than such as may be reasonably acceptable to Lender and its legal counsel;
(p) A consulting engineer's report or architect's certification, including or being accompanied by a mortgagee's title insurance policysoils investigation report from a soils engineer reasonably satisfactory to Lender;
(q) An environmental engineering report for the Property conducted by an engineer reasonably acceptable to Lender, in form and content satisfactory to Lender, to be obtained at Borrower's expense insuring that the Mortgage constitutes a valid first Lien in the Property, free and clear of all defects and encumbrances except such as Lender shall approve, and naming Lender as insured mortgagee, issued by the Title Company, in the maximum principal amount of the indebtedness owing or to be owing to Lender on account of the Loan, with no exceptions or exclusions other than as may be approved by Lender and containing any endorsements required by Lender. Said policy shall contain a pending disbursements clause in form and substance satisfactory to Lender's legal counsel;
(dr) Current survey The Approved Budget;
(s) Issuance of the Property prepared Payment and Performance Bonds;
(t) The fully executed MOB Lease;
(u) Evidence satisfactory to Lender that Five Million One Hundred Eighteen Thousand Eight Hundred Twenty-Three and No/100 Dollars ($5,118,823.00) has been invested in compliance with standards established or loaned to Borrower, and that such amount will be spent by Borrower to defray the costs of the Project before any advances are made by Lender and certified to the benefit of Borrower, provided that Lender and the Title Company, by a duly registered land surveyor or engineer, acceptable to Lender, which survey shall show all courses and distances, dimensions, the area in square feet, street and setback lines, existing improvements and other details reasonably required by Lender or which may be necessary to show hereby acknowledges that there are no encroachments, easements, rights-of-way, building code or zoning violations or that the Property does not lie within a flood hazard area or 404(b) wetlands or other defects affecting marketability or insurability, which survey shall show no encroachment certain affiliates of the foundation for Borrower have previously advanced to Borrower the Improvements on any boundary line, easement, building set back line, or other restricted area. The survey shall be revised upon completion sum of approximately One Million Nine Hundred Sixty-Three Thousand Three Hundred Seventy-Four and 71/100 Dollars ($1,963,374.71) to fund initial construction so as to show costs of the Improvements and such advance shall be credited against such total funds required to be invested in or loaned to Borrower hereunder (with Lender acknowledging that such amount may increase from time to time hereafter); and
(v) Evidence reasonably satisfactory to the Lender that all appurtenances, "conditions to payment of such Advance as built", set forth in accordance with any requirements Section 6(g) of Lender;the Development Agreement have been satisfied in all material respects.
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CONDITIONS TO THE FIRST ADVANCE. As a condition precedent to the first Advance hereunderhereunder (the "First Advance"), Borrower must satisfy the conditions required hereby and set forth elsewhere in this Agreement and deliver to Lender, the documents, certificates, and other items that are set forth below, together with such other documents, instruments, and certificates as Lender, or its legal counsel, may require from time to time:
(a) The Origination Fee;
(b) The Loan Documents duly executed and in recordable form by Borrower and, other parties thereto, if applicable;
(c) The irrevocable commitment of the Title Company to issue the Title Policy in the normal course of business after the payment of the premiums for such policy;
(d) The survey of the Property, dated April 1, 2004 and last updated on December 10, 2004, and issued by ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, Inc., a copy of which has previously been delivered to Lender, and a certification to the benefit of Lender and the Title Company by a duly registered land surveyor or engineer reasonably acceptable to Lender;
(e) The Assignment of Contracts together with the consent of the Architect and Contractor and any other such party to the assignment thereof;
(f) The insurance policies or certificates of such insurance policies as specified in Section 4.13 herein;
(g) A commitment list of the names and addresses of all parties to Major Contracts, together with, if requested by Lender, true and correct copies of all executed contracts and subcontracts;
(h) The Financial Statements;
(i) All governmental permits and approvals necessary or appropriate to complete development and construction of the Project which have been issued as of the date hereof, all of which are to be assigned to Lender as additional security for issuance the Loan, in such manner as shall be acceptable to Lender's legal counsel;
(j) Estoppel Certificate and SNDA in form and substance reasonably acceptable to Lender, from the MOB Tenant;
(k) Evidence that all approvals required under the zoning and property use laws and ordinances applicable to the Property (including any necessary rezoning or other changes in the property use classifications of the Property) and all approvals required under State and local Property subdivision laws and ordinances to acquire the Property in compliance with such laws and ordinances have been obtained and have been or will be complied with;
(l) Evidence that tap permits or "connections" for water and sanitary sewer service to the Property have been obtained or requested;
(m) Evidence that all of the streets providing access to the Property either have been dedicated to public use or established by private easement, duly recorded in the records of the County in which the Property is located, and have been fully installed and accepted by the applicable Governmental Authority, with all costs and expenses of the installation and acceptance thereof having been paid in full, and that there are no restrictions on the use and enjoyment of such streets that adversely affect, limit, or impair Borrower's ability to develop and construct the Property or operate the Property for the purposes and in the manner represented to Lender;
(n) Evidence of the availability for hook-up at the boundaries of the Property of all utilities and other related services to the Property including specifically, but without limitation, gas, electricity, telephone, waste removal, water services and storm and sanitary sewer facilities;
(o) Evidence reasonably satisfactory to Lender's legal counsel that all necessary action on the part of Borrower has been taken with respect to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, so that this Agreement and all Loan Documents to be executed and delivered by or on behalf of Borrower will be valid and binding upon Borrower or the person or entity executing and delivering such document in accordance with its terms. Such evidence shall include the legal opinion of legal counsel for Borrower, as reasonably approved by Lender, and covering such other matters as Lender may reasonably require in form and content reasonably acceptable to Lender's legal counsel and containing no exceptions other than such as may be reasonably acceptable to Lender and its legal counsel;
(p) A consulting engineer's report or architect's certification, including or being accompanied by a mortgagee's title insurance policysoils investigation report from a soils engineer reasonably satisfactory to Lender;
(q) An environmental engineering report for the Property conducted by an engineer reasonably acceptable to Lender, in form and content satisfactory to Lender, to be obtained at Borrower's expense insuring that the Mortgage constitutes a valid first Lien in the Property, free and clear of all defects and encumbrances except such as Lender shall approve, and naming Lender as insured mortgagee, issued by the Title Company, in the maximum principal amount of the indebtedness owing or to be owing to Lender on account of the Loan, with no exceptions or exclusions other than as may be approved by Lender and containing any endorsements required by Lender. Said policy shall contain a pending disbursements clause in form and substance satisfactory to Lender's legal counsel;
(dr) Current survey The Approved Budget;
(s) Issuance of the Property prepared Payment and Performance Bonds;
(t) The fully executed Community Hospital Lease;
(u) Evidence satisfactory to Lender that Nine Million Three Hundred Sixty-One Thousand Nine Hundred Ninety-Seven and No/100 Dollars ($9,361,997.00) of cash equity has been invested in compliance with standards established or loaned to Borrower, and that such amount will be spent by Borrower to defray the costs of the Project before any advances are made by Lender and certified to the benefit of Borrower provided that Lender and the Title Company, by a duly registered land surveyor or engineer, acceptable to Lender, which survey shall show all courses and distances, dimensions, the area in square feet, street and setback lines, existing improvements and other details reasonably required by Lender or which may be necessary to show hereby acknowledges that there are no encroachments, easements, rights-of-way, building code or zoning violations or that the Property does not lie within a flood hazard area or 404(b) wetlands or other defects affecting marketability or insurability, which survey shall show no encroachment certain affiliates of the foundation for Borrower have previously advanced to Borrower the Improvements on any boundary line, easement, building set back line, or other restricted area. The survey shall be revised upon completion sum of approximately Four Million Four Hundred Fifty-One Thousand One Hundred Seventy and 24/100 Dollars ($4,451,170.24) to fund initial construction so as to show costs of the Improvements and such advance shall be credited against such total funds required to be invested in or loaned to Borrower hereunder (with Lender acknowledging that such amount may increase from time to time hereafter); and
(v) Evidence reasonably satisfactory to the Lender that all appurtenances, "conditions to payment of such Advance as built", set forth in accordance with any requirements Section 6(g) of Lender;the Development Agreement have been satisfied in all material respects.
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