CONDITIONS TO THE HOLDERS. AND THE LENDERS' OBLIGATIONS TO MAKE CONSTRUCTION FUNDINGS FOR THE ONGOING CONSTRUCTION ON ANY PROPERTY PRIOR TO THE CONSTRUCTION PERIOD TERMINATION DATE. The obligations of each Holder to make Holder Fundings, and of each Lender to make Loans, to the Lessor (i) in connection with all subsequent requests for Fundings to pay the Transaction Expenses, fees, expense and other disbursements payable by Lessor under SECTION 9.1 (B) of this Agreement, (ii) to pay interest regarding the Loans relating to a Property and to pay the Holder Yield regarding the Holder Fundings relating to a Property, in each case regarding such interest and Holder Yield to the extent accrued and payable under the Credit Agreement or Trust Agreement (as the case may be), during the period prior to the Completion Date with respect to such Property, and (iii) to pay for the construction of Improvements and acquisition of Equipment with respect to any Property, in each case prior to the Completion Date for such Property, are subject to the satisfaction or waiver of the following conditions precedent: (a) the correctness in all material respects on the date of such Holder Fundings and Loans of the representations and warranties of the Owner Trustee, the Construction Agent, the Lessee and the Holders (other than such Holder) contained herein and in each of the other Operative Agreements; (b) the performance in all material respects by the Construction Agent and the Lessee hereto of their respective agreements contained herein and in the other Operative Agreements and to be performed by them on or prior to each such date; (c) the satisfaction of all conditions to any such Holder Funding or Loan set forth in any Operative Agreements; (d) the Agent and the Owner Trustee shall have received a copy of a fully executed counterpart of the respective Requisition, appropriately completed; (e) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements, and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Construction Funding requested by such Requisition; (f) (with respect to each Construction Funding) based upon Construction Budgets which satisfy the requirements of SECTION 5.4(E) of this Agreement, the Available Commitments and the Available Holder Commitment (after deducting the Unfunded Amount) will be sufficient to complete the Improvements; (g) with respect to each Construction Funding, the title insurance commitments to issue policies (or any policies) delivered in connection with the requirements of SECTION 5.3(B)(III)) shall be endorsed and down-dated (in a manner satisfactory to the Agent) to provide insurance in an amount at least equal to the maximum total Property Cost indicated by the Construction Budget referred to in SECTION 5.4(E) (and in any event no less than the total actual Property Cost after giving effect to such Funding), taking no specific exception for any Lien filed on account of materials furnished or labor performed in connection with the Property, and otherwise showing no title change or any additional exceptions to coverage not approved by the Agent; and (h) all additional conditions to, and covenants relating to, such Holder Fundings and Loans, as set forth in Exhibits I and J attached hereto, shall have been fulfilled to the satisfaction of the Agent. The terms of Exhibits I and J are hereby incorporated by reference into this Agreement.
Appears in 1 contract
CONDITIONS TO THE HOLDERS. AND THE LENDERSand the Lenders' OBLIGATIONS TO MAKE CONSTRUCTION FUNDINGS FOR THE ONGOING CONSTRUCTION ON ANY PROPERTY PRIOR TO THE CONSTRUCTION PERIOD TERMINATION DATEObligations to Advance Funds on the Initial Closing Date, for the Acquisition of Property and otherwise. The obligations of each Holder the Holders to make Holder FundingsAdvances, and of each Lender the Lenders to make LoansLoans to the Lessor, (i) on the Initial Closing Date to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Section 9.1(a) of this Agreement and (ii) on a Property Closing Date for the purpose of providing funds to the Lessor (i) in connection with all subsequent requests for Fundings necessary to pay the Transaction Expenses, fees, expense expenses and other disbursements payable by the Lessor under SECTION
9.1 (BSection 9.1(b) of this Agreement, (ii) Agreement and to pay interest regarding the Loans relating to acquire or ground lease a Property and to pay the Holder Yield regarding the Holder Fundings relating to a Property(an "Acquisition Advance"), in each case regarding such interest and Holder Yield to the extent accrued and payable under the Credit Agreement or Trust Agreement (as the case may be), during the period prior to the Completion Date with respect to such Property, and (iii) to pay for the construction of Improvements and acquisition of Equipment with respect to any Property, in each case prior to the Completion Date for such Property, are subject to the satisfaction or waiver of the following conditions precedent:precedent on or prior to such date respecting each Property to be acquired or ground leased at such time and all Properties previously acquired or ground leased (to the extent such conditions precedent require the delivery of any agreement, certificate, instrument, memorandum, legal or other opinion, appraisal, commitment, title insurance commitment, lien report or any other document of any kind or type, such shall be in form and substance reasonably satisfactory to the Lessor, the Agent and the Majority Holders):
(a) the correctness in all material respects on the date of such Holder Fundings and Loans of the representations and warranties (including without limitation the Incorporated Representations and Warranties) on each such date of the Owner TrusteeLessor, the Construction Agent, the Lessee and the Holders (other than such Holder) contained herein and in each of the other Operative Agreements;
(b) the performance in all material respects by the Construction Agent and the Lessee hereto of their respective agreements contained herein and in the other Operative Agreements and to be performed by them on or prior to each such date;
(c) the satisfaction of all conditions to any such Holder Funding or Loan set forth in any Operative Agreements;
(d) the Agent and the Owner Trustee Lessor shall have received a copy of a fully executed counterpart copy of the respective Requisition, appropriately completed;
(d) title to each such Property shall conform to the representations and warranties set forth in Section 8.1(c) hereof;
(e) the Construction Agent shall have delivered to the Lessor the Deed with respect to the Land and existing Improvements (if any), a copy of the Ground Lease (if any), and a copy of the ▇▇▇▇ of Sale with respect to the Equipment (if any), respecting such of the foregoing as are being acquired or ground leased on each such date with the proceeds of the Loans or Holder Advances or which have been previously acquired or ground leased with the proceeds of the Loans or Holder Advances and such Land, existing Improvements (if any) and Equipment (if any) shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements, Agreements and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Construction Funding Advance requested by such Requisition;
(fg) the Construction Agent shall have delivered to the Lessor title insurance commitments to issue policies respecting each such Property in favor of the Lessor, the Agent and the Holders from a title insurance company acceptable to the Lessor, the Agent and the Majority Holders in their reasonable discretion, with such title exceptions thereto as are acceptable to the Lessor, the Agent and the Majority Holders in their reasonable discretion;
(h) the Construction Agent shall have delivered to the Lessor an environmental site assessment respecting each such Property prepared by an independent recognized professional acceptable to the Lessor, the Agent and the Majority Holders in their reasonable discretion;
(i) the Construction Agent shall have delivered to the Lessor a survey (with a flood hazard certification) respecting each such Property prepared by an independent recognized professional acceptable to the Lessor, the Agent and the Majority Holders in their reasonable discretion;
(j) the Construction Agent shall have caused to be delivered to the Lessor a legal opinion, addressed to the Lessor, the Agent, the Lenders and the Holders, from counsel located in the state where each such Property is located;
(k) the Lessor, the Agent and the Majority Holders shall be satisfied, in their reasonable discretion, that the acquisition, ground leasing and/or holding of each such Property and the execution of the Mortgage Instrument and the other Security Documents will not materially and adversely affect the rights of the Lessor, the Agent, the Holders or the Lenders under or with respect to the Operative Agreements;
(l) the Construction Agent shall have delivered to the Lessor, respecting each Construction Fundingsuch Property, invoices for, or other reasonably satisfactory evidence of, the various Transaction Expenses and other fees, expenses and disbursements referenced in Sections 9.1(a) based upon Construction Budgets which satisfy the requirements of SECTION 5.4(Eor (b) of this Agreement, as appropriate;
(m) the Construction Agent shall have caused to be delivered to the Agent a Mortgage Instrument (substantially in the form of Exhibit J hereto, with revisions as necessary to conform to applicable state law), Lessor Financing Statements and Lender Financing Statements respecting each such Property, all fully executed and in recordable form, and all necessary recording fees, documentary stamp taxes and similar amounts shall have been paid by the Construction Agent (which may be paid with Loans and/or Holder Advances);
(n) the Lessee shall have delivered to the Lessor with respect to each Property a Lease Supplement and a memorandum (or short form lease) regarding the Lease and such Lease Supplement (such memorandum or short form lease to be substantially in the form attached to the Lease as Exhibit B, with modifications as necessary to conform to applicable state law, and in form suitable for recording);
(o) with respect to each Acquisition Advance, the sum of the Available Commitments and Commitment plus the Available Holder Commitment (after deducting the Unfunded Amount, if any, and after giving effect to the Acquisition Advance) will be sufficient to complete pay all amounts payable therefrom and to pay interest on the Improvements;
(g) Loans and the Holder Yield on the Holder Advances relating to all Properties to the extent accrued under the Credit Agreement and the Trust Agreement, as the case may be, during the period prior to the Rent Commencement Date with respect to each Construction Fundingsuch Property;
(p) if any such Property is subject to a Ground Lease, the title insurance commitments to issue policies Construction Agent shall have caused a lease memorandum (or short form thereof) to be delivered to the Agent for such Ground Lease;
(q) counsel for the ground lessor of each such Property subject to a Ground Lease shall have issued to the Lessor, the Agent, the Lenders and the Holders, its opinion;
(r) the Construction Agent shall have delivered to the Lessor a preliminary Construction Budget for each such Property, if applicable;
(s) the Construction Agent shall have provided evidence to the Lessor of general and excess liability insurance with respect to each such Property as provided in the Lease;
(t) subject to Section 5.5 of this Agreement, the Construction Agent shall have caused an as-built Appraisal regarding each such Property to be provided to the Lessor from an appraiser selected by the Lessor, the Agent and the Majority Holders;
(u) all necessary (or in the reasonable opinion of the Lessor, the Agent, the Majority Holders, or their respective counsel, advisable) Governmental Actions, in each case required by any policieslaw or regulation enacted, imposed or adopted on or prior to each such date or by any change in facts or circumstances on or prior to each such date, shall have been obtained or made and be in full force and effect;
(v) the Construction Agent shall cause (i) Uniform Commercial Code lien searches, tax lien searches and judgment lien searches regarding the Lessee to be conducted (and copies thereof to be delivered to the Lessor) in connection with such jurisdictions as determined by the requirements of SECTION 5.3(B)(III)Lessor, the Agent or the Majority Holders by a nationally recognized search company acceptable to the Lessor, the Agent and the Majority Holders and (ii) shall the liens referenced in such lien searches which are objectionable to the Lessor, the Agent or the Majority Holders to be endorsed and down-dated (either removed or otherwise handled in a manner satisfactory to the AgentLessor, the Agent and the Majority Holders in their reasonable discretion;
(w) to provide insurance in an amount at least equal to the maximum total Property Cost indicated by the Construction Budget referred to in SECTION 5.4(E) (all taxes, fees and in any event no less than the total actual Property Cost after giving effect to such Funding), taking no specific exception for any Lien filed on account of materials furnished or labor performed other charges in connection with the Propertyexecution, delivery, recording, filing and otherwise showing no title change or any additional exceptions to coverage not approved by registration of the Agent; and
(h) all additional conditions to, and covenants relating to, such Holder Fundings and Loans, as set forth in Exhibits I and J attached hereto, Operative Agreements shall have been fulfilled paid or provisions for such payment shall have been made to the satisfaction of the Lessor, the Agent and the Majority Holders;
(x) all necessary (or in the reasonable opinion of the Lessor, the Agent. The terms , the Majority Holders or their respective counsel, advisable) Governmental Actions, in each case required by any law or regulation enacted, imposed or adopted on or prior to the date hereof or by any change in fact or circumstances on or prior to the date hereof, shall have been obtained or made and be in full force and effect;
(y) no action or proceeding shall have been instituted, nor shall any action or proceeding be overtly threatened, before any Governmental Authority, nor shall any order, judgment or decree have been issued or proposed to be issued by any Governmental Authority or to set aside, restrain, enjoin or prevent the full performance of Exhibits I and J are hereby incorporated by reference into this Agreement, any other Operative Agreement or any transaction contemplated hereby or thereby which, individually or in the aggregate, shall have a Material Adverse Effect;
(z) in the reasonable opinion of the Lessor, the Agent, the Majority Holders and their respective counsel, the transactions contemplated by the Operative Agreements do not and will not violate any Legal Requirements and do not and will not subject the Lessor, the Lenders, the Agent or the Holders to any adverse regulatory prohibitions, constraints, penalties or fines; and
(aa) each of the conditions set forth in Section 6.1 shall have been met to the satisfaction of or waived by the Lessor, the Majority Holders, the Majority Lenders and the Agent.
Appears in 1 contract
Sources: Participation Agreement (Performance Food Group Co)
CONDITIONS TO THE HOLDERS. AND THE LENDERSand the Lenders' OBLIGATIONS TO MAKE CONSTRUCTION FUNDINGS FOR THE ONGOING CONSTRUCTION ON ANY PROPERTY PRIOR TO THE CONSTRUCTION PERIOD TERMINATION DATEObligations to Advance ------------------------------------------------------------------ Funds for the Acquisition of Property. -------------------------------------- The obligations of each Holder the Holders to make a Holder FundingsFunding, and of each Lender the Lenders to make LoansLoans to the Lessor, (i) on the Initial Closing Date to pay Transaction Expenses, fees, expenses and other disbursements payable by the Lessor under Article IX of this Agreement and (ii) on a Property Closing Date for the purpose of providing funds to the Lessor (i) in connection with all subsequent requests for Fundings necessary to pay the Transaction Expenses, fees, expense expenses and other disbursements payable by the Lessor under SECTION
9.1 (B) Article IX of this Agreement, (ii) Agreement and to pay interest regarding the Loans relating to acquire a Property and to pay the Holder Yield regarding the Holder Fundings relating to a Property, (an "Acquisition Advance") in each case regarding such interest and Holder Yield to the extent accrued and payable under the Credit Agreement or Trust Agreement (as the case may be), during the period prior to the Completion Date with respect to such Property, and (iii) to pay for the construction of Improvements and acquisition of Equipment with respect to any Property, in each case prior to the Completion Date for such Property, are subject to the satisfaction or waiver of the following conditions precedent:
(a) the correctness in all material respects on the date of such Holder Fundings and Loans Property Closing Date of the representations and warranties (including without limitation the Incorporated Representations and Warranties) of the Owner TrusteeLessor, the Construction Agent, the Lessee and the Holders (other than such Holder) contained herein and in each of the other Operative Agreements;
(b) the performance in all material respects by the Construction Agent and the Lessee hereto of their respective agreements contained herein and in the other Operative Agreements and to be performed by them on or prior to each such dateProperty Closing Date;
(c) the satisfaction of all conditions to any such Holder Funding or Loan set forth in any Operative Agreements;
(d) the Agent and the Owner Trustee shall have received a copy of a fully executed counterpart copy of the respective Requisition, appropriately completed;
(d) title to each Property being acquired on such Property Closing Date shall conform to the representations and warranties set forth in Section 8.1(c) hereof;
(e) the Construction Agent shall have delivered to the Lessor a copy of the Deed with respect to the Land (if applicable) and existing Improvements (if applicable) and a copy of the ▇▇▇▇ of Sale with respect to the Equipment, respecting such of the foregoing as are being acquired on such Property Closing Date, and such Land and existing Improvements shall be located in an Approved State;
(f) there shall not have occurred and be continuing any Default or Event of Default under any of the Operative Agreements, Agreements and no Default or Event of Default under any of the Operative Agreements will have occurred after giving effect to the Construction Funding Advance requested by such Requisition;
(fg) the Construction Agent shall have delivered to the Agent, title insurance commitments to issue policies in favor of the Lessor and the Agent from a title insurance company and in form and substance acceptable to the Agent, with such title exceptions thereto as are acceptable to the Agent;
(h) the Construction Agent shall have delivered to the Agent and the Lessor an environmental site assessment prepared by an independent recognized professional acceptable to the Agent and the Lessor and in a form and substance that is acceptable to the Agent and the Lessor;
(i) the Construction Agent shall have delivered to the Agent a survey prepared by an independent recognized professional acceptable to the Agent and in a form and substance acceptable to the Agent;
(j) the Construction Agent shall have caused to be delivered to the Agent and the Lessor (i) a legal opinion (in form and substance satisfactory to the Agent) from counsel located in the state where the Property is located and (ii) a good standing certificate for the Construction Agent from the appropriate officer of the state in which the Property is located;
(k) the Lessor and the Agent shall be satisfied, in their discretion, that the acquisition and/or holding of the Property and the execution of the Mortgage Instrument and the other Security Documents will not adversely affect the rights of the Lessor, the Holders, the Agent or the Lenders under or with respect to the Operative Agreements;
(l) the Lessor shall have delivered to the Agent and there shall have been recorded by the Agent a Mortgage Instrument and the Lender Financing Statements respecting such Property in a form acceptable to the Agent and all necessary recording fees, documentary stamp taxes and similar amounts shall have been paid;
(m) the Construction Agent shall have delivered to the Agent with respect to each Property, a Lease Supplement and a memorandum regarding the Lease and such Lease Supplement (such memorandum to be substantially in the form attached as Exhibit B to the Lease and in form suitable for recording); provided, such items shall be delivered pursuant to this -------- Section 5.3(m) on the Property Closing Date for such Property only if the Basic Term Commencement Date for such Property shall also occur on such Property Closing Date;
(n) the Construction FundingAgent shall have delivered to the Agent with respect to each Property or the acquisition of personal property and/or fixtures in accordance with the Operative Agreements, Lessor Financing Statements executed by the Lessee and the Lessor;
(i) based upon Construction Budgets which satisfy the requirements of SECTION 5.4(E) of this Agreementwith respect to each Acquisition Advance, the Available Commitments Commitment and the Available Holder Commitment (after deducting the Unfunded Amount) will be sufficient to complete acquire the ImprovementsProperty and to pay interest regarding the Loans and the Holder Yield regarding the Holder Fundings relating to all Properties to the extent accrued under the Credit Agreement and the Trust Agreement, as the case may be, during the period prior to the Basic Term Commencement Date with respect to such Properties; and (ii) based upon the construction schedule relating to any Construction Period Property, there is sufficient time for Completion of such Construction Period Property to occur on or prior to the Construction Period Termination Date;
(gp) with respect if the Property is subject to each a Ground Lease the Construction Funding, the title insurance commitments to issue policies (or any policies) delivered in connection with the requirements of SECTION 5.3(B)(III)) Agent shall be endorsed and down-dated have caused a lease memorandum (in a manner form and substance satisfactory to the Agent) to provide insurance in an amount at least equal be delivered to the maximum total Agent for such Ground Lease;
(q) Counsel for the ground lessor of each Property Cost indicated by subject to a Ground Lease shall have issued to the Lessee, the Holders, the Lenders and the Agent its opinion (in form and substance satisfactory to the Agent);
(r) the Construction Budget referred Agent shall have delivered to in SECTION 5.4(Ethe Agent a preliminary construction budget (the "Construction Budget") for the Improvements (if any) to be constructed on such Property;
(s) the Construction Agent shall have provided evidence of general and in any event no less than the total actual Property Cost after giving effect excess liability insurance with respect to such Funding), taking no specific exception for any Lien filed on account of materials furnished or labor performed Property as provided in connection with the Property, and otherwise showing no title change or any additional exceptions to coverage not approved by the AgentLease; and
(ht) all additional conditions toin their sole and absolute discretion, the Lenders and the Holders shall have agreed to accept, and covenants relating to, such to fund the respective Loans and Holder Fundings regarding, the particular property then under consideration as a Property; provided, however, it is hereby understood and Loansagreed that (a) -------- ------- that certain campus facility in Federal Way, as set forth Washington, Phase I of which contains 10.29 acres and will have a single building of 143,958 square feet and Phase II of which contains 11.87 acres is anticipated to have two three-story buildings of approximately 100,000 square feet each, one of which (including the related real property) may be financed hereunder, and (b) that certain 4-story office building at 8715 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Tampa, Florida 33634, its respective interest in Exhibits I the related 5-story parking garage and J attached hereto, shall have been fulfilled to the satisfaction of related ground lease for the Agent. The terms of Exhibits I and J real property at such location are hereby incorporated by reference into this Agreementacceptable Properties.
Appears in 1 contract
Sources: Participation Agreement (Capital One Financial Corp)
CONDITIONS TO THE HOLDERS. AND THE LENDERS' OBLIGATIONS TO MAKE CONSTRUCTION FUNDINGS FOR THE ONGOING CONSTRUCTION ON ANY PROPERTY PRIOR TO THE CONSTRUCTION PERIOD TERMINATION DATE. The obligations of each Holder to make Holder Fundings, and of each Lender to make Loans, to the Lessor (i) in connection with all subsequent requests for Fundings to pay the Transaction Expenses, fees, expense and other disbursements payable by Lessor under SECTION
9.1 (BSECTION 9.1(B) of this Agreement, (ii) to pay interest regarding the Loans relating to an Incomplete Existing Property or a New Property and to pay the Holder Yield regarding the Holder Fundings relating to an Incomplete Existing Property or a New Property, in each case regarding such interest and Holder Yield to the extent accrued and payable under the Credit Agreement or Trust Agreement (as the case may be), during the period prior to the Completion Date with respect to for such Property, and (iii) to pay for the construction of Improvements and or the acquisition or installation of Equipment with respect to any an Incomplete Existing Property or a New Property, in each case prior to the Completion Date for such Property, are subject to the satisfaction or waiver of the following conditions precedent:
(a) the correctness in all material respects on the date of such Holder Fundings and Loans of the representations and warranties of the Owner Trustee, the Construction Agent, the Lessee and the Holders (other than such Holder) contained herein and in each of the other Operative Agreements;
(b) the performance in all material respects by the Construction Agent and the Lessee hereto of their respective agreements contained herein and in the other Operative Agreements and to be performed by them on or prior to each such date;
(c) the satisfaction of all conditions to any such Holder Funding or Loan set forth in any Operative Agreements;
(d) the Agent and the Owner Trustee shall have received a copy of a fully executed counterpart of the respective Requisition, appropriately completed;
(e) there shall not have occurred and be continuing any Lease Default or Lease Event of Default under any of the Operative Agreements, and no Lease Default or Lease Event of Default under any of the Operative Agreements will have occurred after giving effect to the Construction Funding requested by such Requisition;
(f) (with respect to each Construction Funding) based upon Construction Budgets which satisfy the requirements of SECTION 5.4(E) of this Agreement, the Available Commitments and the Available Holder Commitment (after deducting the Unfunded Amount) will be sufficient to complete the Improvements;; and
(g) with respect to each Construction Funding, the title insurance commitments to issue policies (or any policies) delivered in connection with the requirements of SECTION 5.3(B)(III)) shall provide (or shall be endorsed and down-dated (dated, in a manner satisfactory to the Agent, to provide) to provide insurance in an amount at least equal to the maximum total Property Cost indicated by the Construction Budget referred to in SECTION 5.4(E) (and in any event no less than the total actual Property Cost after giving effect to such Funding), taking no specific exception for any Lien filed on account of materials furnished or labor performed in connection with the Property, and otherwise showing no title change or any additional exceptions to coverage not approved by the Agent; and
(h) all additional conditions to, and covenants relating to, such Holder Fundings and Loans, as set forth in Exhibits I and J attached hereto, shall have been fulfilled to the satisfaction of the Agent. The terms of Exhibits I and J are hereby incorporated by reference into this Agreement.in
Appears in 1 contract