Borrowing Base Assets. (a) The Eligible Real Estate and Borrowing Base Loans included in the calculation of the Borrowing Base Availability shall at all times satisfy all of the following conditions: (i) the Eligible Real Estate shall be owned one hundred percent (100%) in fee simple, or leased under a Ground Lease, by a Wholly Owned Subsidiary of Borrower that is a Subsidiary Guarantor, in each case free and clear of all Liens other than the Liens permitted in §8.2(i) and (ix), and other Liens approved in writing by Agent, and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents); (ii) none of the Eligible Real Estate shall have any material title, survey, environmental, structural or other defects except as reasonably approved by the Agent and the Required Lenders; (iii) if such Eligible Real Estate is held by a Subsidiary Guarantor, the only asset of such Subsidiary Guarantor shall be Eligible Real Estate included in the calculation of the Borrowing Base Availability; (iv) each Operator’s Agreement and Lease with a Major Tenant for a Borrowing Base Property shall obligate the Operator or tenant to provide to Borrower or the applicable Subsidiary Guarantor sufficient and timely financial information, separate for the specific location at the Borrowing Base Property, to permit calculation of clause (b) of the definition of Adjusted Net Operating Income and determine whether such property is an EBITDAR Stabilized Property or a Newly-Built Property; (v) [Intentionally Omitted]; (vi) no tenant or group of Affiliates thereof which leases ninety percent (90%) or more of the Net Rentable Area of such Real Estate (A) is in default of base rent or other material payment obligations under its respective Lease for more than seventy-five (75) days beyond the date upon which such payment obligations were due, or (B) is subject to any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation or similar debtor relief proceeding; (vii) the Primary License of such Eligible Real Estate shall not have been revoked or the subject of any revocation proceeding, no event or circumstance shall have occurred or exist which would result in the Operator thereof no longer being entitled to reimbursement under Medicare or Medicaid and the Operator shall be in compliance in all material respects with all applicable Healthcare Laws and accreditation and registration standards and requirements of the applicable State Regulator, in each case, as are now in effect and which may be imposed upon such Operator or the maintenance, use or operation of the Borrowing Base Properties or the provision of services to the occupants of the Borrowing Base Properties; (viii) there shall have been at no time any change in any Major Tenant of a Borrowing Base Property (whether by assignment, substitution or otherwise) from the Major Tenants of such Borrowing Base Property as of the date of acceptance of such Real Estate as a Borrowing Base Property unless approved by Agent in writing; and (ix) if such Borrowing Base Asset is a Borrowing Base Loan, such Borrowing Base Loan shall at all times satisfy all of the following conditions: (A) such Borrowing Base Loan is secured by real estate that satisfies the requirements of clauses (b), (c), (d), (f), (g), (h) and (i) of the definition of Eligible Real Estate; (B) the real estate subject to the Borrowing Base Loan shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by the Collateral Borrower, free and clear of all Liens other than the Liens securing the Borrowing Base Loans and other Liens approved in writing by Agent; (C) none of the real estate securing the Borrowing Base Loan shall have any material environmental, structural, title or other defects, and not be subject to any condemnation proceeding, that in any event would give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or finance such property; (D) Borrower’s or the applicable Subsidiary Guarantor’s entire interest in the Borrowing Base Loan shall have been assigned to Agent pursuant to the Security Documents and Agent shall have a perfected first priority security interest therein. Without limiting the foregoing, no interest in any Borrowing Base Loan Document shall have been pledged or assigned to any Person other than the pledge to Agent; (E) the Borrowing Base Loan Documents shall be owned one hundred percent (100%) by the Borrower or a Subsidiary Guarantor free and clear of all Liens, other than the Lien in favor of Agent for the benefit of the Lenders and the Lender Hedge Providers, and of any claims or rights of participation of any other Person, and free of any restrictions on transfer, assignment or pledge thereof; (F) for any Borrowing Base Loans added after the date of this Agreement, the maturity date (inclusive of any extension options) of the Borrowing Base Loan must be not later than November 7, 2020, and the Borrowing Base Loan Documents for Borrowing Base Loans shall otherwise be in form and substance satisfactory to Agent; (G) the Borrowing Base Loan shall not be a Defaulted Loan or a Delinquent Loan; (H) except as approved by Agent, the Collateral Borrower shall have no Indebtedness other than the Borrowing Base Loan and other Indebtedness applicable to the real estate and of the type permitted under §8.1(c) or (d); (I) the Borrowing Base Loan and Borrowing Base Loan Documents shall satisfy each other condition in this Agreement and the other Loan Documents applicable thereto; and (J) commencing when any Borrowing Base Loan is added as a Borrowing Base Asset, when aggregated with the Initial Borrowing Base Loans, not more than twenty percent (20%) of the Borrowing Base Availability shall at any time be attributable to Borrowing Base Loans. (b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Borrowing Base Availability shall be damaged in any material respect or taken by condemnation, then such property shall no longer be included in the calculation of the Borrowing Base Availability unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the value of such real estate following such repair or restoration (both at such time and prospectively) or (ii) the Agent shall receive evidence satisfactory to the Agent (which evidence may include the availability of rent loss and other insurance) that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation. In the event that such damage or condemnation only partially affects such Eligible Real Estate included in the calculation of the Borrowing Base Availability, then the Required Lenders may in good faith reduce the Borrowing Base Availability attributable thereto based on such damage until such time as the Required Lenders receive evidence satisfactory to the Required Lenders that the value of such real estate (both at such time and prospectively) shall no longer be materially adversely affected by such damage or condemnation. (c) Upon any asset ceasing to qualify to be included in the calculation of the Borrowing Base Availability, such asset shall no longer be included in the calculation of the Borrowing Base Availability unless otherwise approved in writing by the Required Lenders. Within five (5) Business Days after becoming aware of any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable to such asset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent an updated Borrowing Base Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in §§5.4, 7.20, 9.1, 9.6, 9.7, 9.8, 9.9 and 9.10.
Appears in 2 contracts
Samples: Credit Agreement (MedEquities Realty Trust, Inc.), Credit Agreement (MedEquities Realty Trust, Inc.)
Borrowing Base Assets. (ai) The Eligible Real Estate Loan Parties are the legal and Borrowing Base Loans included in the calculation beneficial owners of the Borrowing Base Availability shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate shall be owned one hundred percent (100%) in fee simpleAssets, or leased under a Ground Lease, by a Wholly Owned Subsidiary of Borrower that is a Subsidiary Guarantor, in each case free and clear of all any Lien, except for Permitted Liens other than the Liens permitted described in §8.2(iclauses (a), (b), (d) and (ix), and other Liens approved in writing by Agent, and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents);
(ii) none of the Eligible Real Estate shall have any material title, survey, environmental, structural or other defects except as reasonably approved by the Agent and the Required Lenders;
(iii) if such Eligible Real Estate is held by a Subsidiary Guarantor, the only asset of such Subsidiary Guarantor shall be Eligible Real Estate included in the calculation of the Borrowing Base Availability;
(iv) each Operator’s Agreement and Lease with a Major Tenant for a Borrowing Base Property shall obligate the Operator or tenant to provide to Borrower or the applicable Subsidiary Guarantor sufficient and timely financial information, separate for the specific location at the Borrowing Base Property, to permit calculation of clause (be) of the definition of Adjusted Net Operating Income and determine whether “Permitted Liens”. Each of the Borrowing Base Assets satisfies the requirements in this Agreement to being a Borrowing Base Asset. There are no proceedings in condemnation or eminent domain affecting any of the Borrowing Base Assets and, to the knowledge of each Loan Party, none is threatened. Except for any option or other purchase right granted to a Subsidiary Guarantor under the express terms of a Ground Lease to which such property Subsidiary Guarantor is an EBITDAR Stabilized Property a party, no Person has any option or a Newly-Built Property;other right to purchase all or any portion of any of the Borrowing Base Assets or any interest therein.
(vii) [Intentionally Omitted];
To the knowledge of each Loan Party and except as may be disclosed in any zoning reports and property condition reports delivered to the Administrative Agent, (vi) no tenant or group of Affiliates thereof which leases ninety percent (90%) or more of the Net Rentable Area of such Real Estate (A) is in default of base rent or other material payment obligations under its respective Lease for more than seventy-five (75) days beyond the date upon which such payment obligations were due, or (B) is subject to any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation or similar debtor relief proceeding;
(viii) the Primary License of such Eligible Real Estate shall not have been revoked or the subject of any revocation proceeding, no event or circumstance shall have occurred or exist which would result in the Operator thereof no longer being entitled to reimbursement under Medicare or Medicaid Borrowing Base Assets and the Operator shall be in compliance use thereof comply in all material respects with all applicable Healthcare Laws zoning, subdivision and accreditation land use laws, regulations and registration standards ordinances, all applicable health, fire, building codes, parking laws and requirements all other laws, statutes, codes, ordinances, rules and regulations applicable to the Borrowing Base Assets, or any of them, including without limitation the applicable State RegulatorAmericans with Disabilities Act; (ii) all permits, in licenses and certificates for the lawful use, occupancy and operation of each case, as are now in effect and which may be imposed upon such Operator or the maintenance, use or operation component of each of the Borrowing Base Properties Assets in the manner in which it is currently being used, occupied and operated, including, but not limited to certificates of occupancy, or the provision of services equivalent, have been obtained and are current and in full force and effect; (iii) no legal proceedings are pending or, to the occupants knowledge of each Loan Party, threatened with respect to the zoning of any Borrowing Base Properties;
Asset; and (viiiiv) there shall have been at no time neither the zoning nor any change other right to construct, use or operate any Borrowing Base Asset is in any Major Tenant of a Borrowing Base Property (whether by assignment, substitution way dependent upon or otherwise) from the Major Tenants of such Borrowing Base Property as of the date of acceptance of such Real Estate as a Borrowing Base Property unless approved by Agent in writing; and
(ix) if related to any real estate other than such Borrowing Base Asset is a Borrowing Base Loan, such Borrowing Base Loan shall at all times satisfy all of the following conditions:
(A) such Borrowing Base Loan is secured by real estate that satisfies the requirements of clauses (b), (c), (d), (f), (g), (h) and (i) of the definition of Eligible Real Estate;
(B) the real estate subject to the Borrowing Base Loan shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by the Collateral Borrower, free and clear of all Liens other than the Liens securing the Borrowing Base Loans and other Liens approved in writing by Agent;
(C) none of the real estate securing the Borrowing Base Loan shall have any material environmental, structural, title or other defects, and not be subject to any condemnation proceeding, that in any event would way that has had or is reasonably likely to give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or finance such property;Borrowing Base Asset.
(Diii) Borrower’s The Loan Parties have delivered to the Administrative Agent a true and complete copy of each of the Management Agreements and Material Contracts to which they are a party that will be in effect on the Closing Date, and such Management Agreements and Material Contracts have not been modified or the applicable Subsidiary Guarantor’s entire interest in the Borrowing Base Loan shall have been assigned to Agent amended except pursuant to amendments or modifications delivered to Administrative Agent. Such Management Agreements and Material Contracts are in full force and effect and no default by any of the Security Documents and Agent shall have a perfected first priority security interest therein. Without limiting the foregoingLoan Parties or Approved Managers exists thereunder.
(iv) To each Loan Party’s knowledge, no interest in all improvements on any Borrowing Base Asset, including without limitation the roof and all structural components, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior doors, parking facilities, sidewalks and landscaping, are in good condition and repair, subject to normal wear and tear and necessary repairs in the ordinary course of business. The Loan Document shall have been pledged or assigned to any Person other than the pledge to Agent;
(E) the Borrowing Base Loan Documents shall be owned one hundred percent (100%) by the Borrower or a Subsidiary Guarantor free and clear of all Liens, other than the Lien in favor of Agent for the benefit of the Lenders and the Lender Hedge Providers, and Parties are not aware of any claims latent or rights of participation of patent structural or other material defect in any other Person, and free of any restrictions on transfer, assignment or pledge thereof;
(F) for any Borrowing Base Loans added after the date of this Agreement, the maturity date (inclusive of any extension options) of the Borrowing Base Assets and, to the Loan must be not later than November 7Parties’ knowledge, 2020city water supply, storm and sanitary sewers, and electrical, gas (if applicable) and telephone facilities are available to each of the Borrowing Base Loan Documents for Borrowing Base Loans shall otherwise be in form and substance satisfactory to Agent;
(G) Assets within the boundary lines of each of the Borrowing Base Loan shall Assets (except in any way that has not be had and is reasonably likely to not give rise to a Defaulted Loan materially adverse effect as to the value, use of or a Delinquent Loan;
(H) except as approved by Agentability to sell or finance such Borrowing Base Asset), are fully connected to the Collateral Borrower shall have no Indebtedness other than improvements and are fully operational, are sufficient to meet the reasonable needs of each of the Borrowing Base Loan Assets as now used or presently contemplated to be used, and no other Indebtedness applicable utility facilities are necessary to meet the real estate and reasonable needs of the type permitted under §8.1(c) or (d);
(I) any of the Borrowing Base Loan Assets as now used or presently contemplated. Except in any way that has not had and Borrowing Base Loan Documents shall satisfy each other condition in this Agreement and is reasonably likely to not give rise to a materially adverse effect as to the other Loan Documents applicable thereto; and
(J) commencing when any Borrowing Base Loan is added as a value, use of or ability to sell or finance such Borrowing Base Asset, when aggregated with the Initial Borrowing Base Loans, not more than twenty percent (20%) no part of any of the Borrowing Base Availability shall at Assets is within a flood plain and none of the improvements thereon create encroachments over, across or upon any time be attributable to Borrowing Base Loans.
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Borrowing Base Availability shall Assets’ boundary lines, rights of way or easements, and no building or other improvements on adjoining land create such an encroachment which could reasonably be damaged in any material respect or taken by condemnation, then such property shall no longer be included in the calculation expected to have a Material Adverse Effect. All public roads and streets necessary for service of and access to each of the Borrowing Base Availability unless Assets for the current and until (i) contemplated uses thereof have been completed and are serviceable and are physically and legally open for use by the public. To the Loan Parties’ knowledge after due inquiry, any damage to such real estate is repaired or restored, such real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the value of such real estate following such repair or restoration (both septic system located at such time and prospectively) or (ii) the Agent shall receive evidence satisfactory to the Agent (which evidence may include the availability of rent loss and other insurance) that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation. In the event that such damage or condemnation only partially affects such Eligible Real Estate included in the calculation any of the Borrowing Base Availability, then the Required Lenders may Assets is in good faith reduce the Borrowing Base Availability attributable thereto based on such damage until such time as the Required Lenders receive evidence satisfactory to the Required Lenders that the value of such real estate (both at such time and prospectively) shall no longer be materially adversely affected by such damage or condemnationsafe condition and repair and in compliance with all applicable law in all material respects.
(cv) Upon any asset ceasing to qualify to be included in the calculation Each of the Borrowing Base Availability, such asset shall no longer be included in the calculation Assets is comprised of one (1) or more parcels which constitute separate tax lots. No part of any of the Borrowing Base Availability unless otherwise approved in writing by the Required Lenders. Within five (5) Business Days after becoming aware Assets is included or assessed under or as part of another tax lot or parcel, and no part of any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity other property is included or assessed under or as part of the disqualified asset, a statement as to whether tax lots or parcels comprising any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable Assets.
(vi) Neither the Borrower nor any of the Guarantors has received any outstanding notice from any insurer or its agent requiring performance of any work with respect to such asset. Simultaneously any of the Borrowing Base Assets or canceling or threatening to cancel any policy of insurance, and each of the Borrowing Base Assets complies with the delivery material requirements of all of the items required pursuant above, Borrower’s and the Borrower shall deliver to the Agent an updated Borrowing Base Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in §§5.4, 7.20, 9.1, 9.6, 9.7, 9.8, 9.9 and 9.10Guarantor’s insurance carriers.
Appears in 2 contracts
Samples: Credit Agreement (Campus Crest Communities, Inc.), Credit Agreement (Campus Crest Communities, Inc.)
Borrowing Base Assets. (ai) The Eligible Real Estate and Each of the Mortgages, when properly recorded in the appropriate records, creates a valid, perfected first lien on the respective Borrowing Base Loans included in Asset, subject only to Permitted Liens. The Loan Parties are the calculation legal and beneficial owners of the Borrowing Base Availability shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate shall be owned one hundred percent (100%) in fee simpleAssets, or leased under a Ground Lease, by a Wholly Owned Subsidiary of Borrower that is a Subsidiary Guarantor, in each case free and clear of all any Lien, except for Permitted Liens other than the Liens permitted described in §8.2(iclauses (a), (b), (d), (e) and (ix), and other Liens approved in writing by Agent, and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents);
(ii) none of the Eligible Real Estate shall have any material title, survey, environmental, structural or other defects except as reasonably approved by the Agent and the Required Lenders;
(iii) if such Eligible Real Estate is held by a Subsidiary Guarantor, the only asset of such Subsidiary Guarantor shall be Eligible Real Estate included in the calculation of the Borrowing Base Availability;
(iv) each Operator’s Agreement and Lease with a Major Tenant for a Borrowing Base Property shall obligate the Operator or tenant to provide to Borrower or the applicable Subsidiary Guarantor sufficient and timely financial information, separate for the specific location at the Borrowing Base Property, to permit calculation of clause (bf) of the definition of Adjusted Net Operating Income and determine whether such property “Permitted Liens”. Each of the Borrowing Base Assets satisfies the requirements in this Agreement to being a Borrowing Base Asset. There are no proceedings in condemnation or eminent domain affecting any of the Borrowing Base Assets and, to the knowledge of each Loan Party, none is an EBITDAR Stabilized Property threatened. No Person has any option or a Newly-Built Property;other right to purchase all or any portion of any of the Borrowing Base Assets or any interest therein.
(vii) [Intentionally Omitted];
To the knowledge of each Loan Party and except as may be disclosed in the zoning reports and property condition reports delivered to the Administrative Agent, (vi) no tenant or group of Affiliates thereof which leases ninety percent (90%) or more of the Net Rentable Area of such Real Estate (A) is in default of base rent or other material payment obligations under its respective Lease for more than seventy-five (75) days beyond the date upon which such payment obligations were due, or (B) is subject to any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation or similar debtor relief proceeding;
(viii) the Primary License of such Eligible Real Estate shall not have been revoked or the subject of any revocation proceeding, no event or circumstance shall have occurred or exist which would result in the Operator thereof no longer being entitled to reimbursement under Medicare or Medicaid Borrowing Base Assets and the Operator shall be in compliance use thereof comply in all material respects with all applicable Healthcare Laws zoning, subdivision and accreditation land use laws, regulations and registration standards ordinances, all applicable health, fire, building codes, parking laws and requirements all other laws, statutes, codes, ordinances, rules and regulations applicable to the Borrowing Base Assets, or any of them, including without limitation the applicable State RegulatorAmericans with Disabilities Act; (ii) all permits, in licenses and certificates for the lawful use, occupancy and operation of each case, as are now in effect and which may be imposed upon such Operator or the maintenance, use or operation component of each of the Borrowing Base Properties Assets in the manner in which it is currently being used, occupied and operated, including, but not limited to certificates of occupancy, or the provision of services equivalent, have been obtained and are current and in full force and effect; (iii) no legal proceedings are pending or, to the occupants knowledge of each Loan Party, threatened with respect to the zoning of any Borrowing Base Properties;
Asset; and (viiiiv) there shall have been at no time neither the zoning nor any change other right to construct, use or operate any Borrowing Base Asset is in any Major Tenant of a Borrowing Base Property (whether by assignment, substitution way dependent upon or otherwise) from the Major Tenants of such Borrowing Base Property as of the date of acceptance of such Real Estate as a Borrowing Base Property unless approved by Agent in writing; and
(ix) if related to any real estate other than such Borrowing Base Asset is a Borrowing Base Loan, such Borrowing Base Loan shall at all times satisfy all of the following conditions:
(A) such Borrowing Base Loan is secured by real estate that satisfies the requirements of clauses (b), (c), (d), (f), (g), (h) and (i) of the definition of Eligible Real Estate;
(B) the real estate subject to the Borrowing Base Loan shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by the Collateral Borrower, free and clear of all Liens other than the Liens securing the Borrowing Base Loans and other Liens approved in writing by Agent;
(C) none of the real estate securing the Borrowing Base Loan shall have any material environmental, structural, title or other defects, and not be subject to any condemnation proceeding, that in any event would way that has had or is reasonably likely to give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or finance such property;Borrowing Base Asset.
(Diii) Borrower’s The Loan Parties have delivered to the Administrative Agent a true and complete copy of each of the Management Agreements and Material Contracts to which they are a party that will be in effect on the Closing Date, and such Management Agreements and Material Contracts have not been modified or the applicable Subsidiary Guarantor’s entire interest in the Borrowing Base Loan shall have been assigned to Agent amended except pursuant to amendments or modifications delivered to Administrative Agent. Such Management Agreements and Material Contracts are in full force and effect and no default by any of the Security Documents Loan Parties or Approved Managers exists thereunder. Except for the rights of (x) each of the Approved Managers pursuant to any Management Agreements and Agent shall have a perfected first priority security interest therein. Without limiting (y) third-party vendors (including, without limitation, landscapers, ATM lessors, vending machine lessors and the foregoinglike), no interest in Person has any Borrowing Base Loan Document shall have been pledged right or assigned obligation to manage any Person other than the pledge to Agent;
(E) the Borrowing Base Loan Documents shall be owned one hundred percent (100%) by the Borrower or a Subsidiary Guarantor free and clear of all Liens, other than the Lien in favor of Agent for the benefit of the Lenders and the Lender Hedge Providers, and of any claims or rights of participation of any other Person, and free of any restrictions on transfer, assignment or pledge thereof;
(F) for any Borrowing Base Loans added after the date of this Agreement, the maturity date (inclusive of any extension options) of the Borrowing Base Loan must be not later than November 7Assets or to receive compensation in connection with such management. Except for the parties to any leasing brokerage agreement that has been delivered to the Administrative Agent and community assistants who are paid a minimal referral fee for residential Tenancy Leases they obtain, 2020, and no Person has any right or obligation to lease or solicit tenants for any of the Borrowing Base Loan Documents Assets, or (except for Borrowing Base Loans shall otherwise be cooperating outside brokers) to receive compensation in form and substance satisfactory to Agent;connection with such leasing.
(Giv) the Borrowing Base To each Loan shall not be a Defaulted Loan or a Delinquent Loan;
(H) except as approved by AgentParty’s knowledge, the Collateral Borrower shall have no Indebtedness other than the Borrowing Base Loan and other Indebtedness applicable to the real estate and of the type permitted under §8.1(c) or (d);
(I) the Borrowing Base Loan and Borrowing Base Loan Documents shall satisfy each other condition in this Agreement and the other Loan Documents applicable thereto; and
(J) commencing when all improvements on any Borrowing Base Loan is added as a Borrowing Base Asset, when aggregated with including without limitation the Initial Borrowing Base Loansroof and all structural components, plumbing systems, HVAC systems, fire protection systems, electrical systems, equipment, elevators, exterior doors, parking facilities, sidewalks and landscaping, are in good condition and repair, subject to normal wear and tear and necessary repairs in the ordinary course of business. The Loan Parties are not more than twenty percent (20%) aware of any latent or patent structural or other material defect in any of the Borrowing Base Availability shall at any time be attributable Assets and, to Borrowing Base Loans.
the Loan Parties’ knowledge, city water supply, storm and sanitary sewers, and electrical, gas (bif applicable) In the event that all or any material portion of any Eligible Real Estate included in the calculation and telephone facilities are available to each of the Borrowing Base Availability shall be damaged in any material respect or taken by condemnation, then such property shall no longer be included in Assets within the calculation boundary lines of each of the Borrowing Base Availability unless Assets (except in any way that has not had and until (i) any damage is reasonably likely to such real estate is repaired or restored, such real estate becomes fully operational and the Agent shall receive evidence satisfactory not give rise to a materially adverse effect as to the Agent value, use of the value of or ability to sell or finance such real estate following such repair or restoration (both at such time and prospectively) or (ii) the Agent shall receive evidence satisfactory Borrowing Base Asset), are fully connected to the Agent (which evidence may include improvements and are fully operational, are sufficient to meet the availability reasonable needs of rent loss and other insurance) that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation. In the event that such damage or condemnation only partially affects such Eligible Real Estate included in the calculation each of the Borrowing Base Availability, then the Required Lenders may in good faith reduce the Borrowing Base Availability attributable thereto based on such damage until such time Assets as the Required Lenders receive evidence satisfactory to the Required Lenders that the value of such real estate (both at such time and prospectively) shall no longer be materially adversely affected by such damage now used or condemnation.
(c) Upon any asset ceasing to qualify presently contemplated to be included in used, and no other utility facilities are necessary to meet the calculation reasonable needs of any of the Borrowing Base AvailabilityAssets as now used or presently contemplated. Except in any way that has not had and is reasonably likely to not give rise to a materially adverse effect as to the value, use of or ability to sell or finance such asset shall Borrowing Base Asset, no longer be included in the calculation part of any of the Borrowing Base Availability unless otherwise approved in writing by the Required Lenders. Within five (5) Business Days after becoming aware of any such disqualification, the Borrower shall deliver to the Agent Assets is within a certificate reflecting such disqualification, together with the identity flood plain and none of the disqualified assetimprovements thereon create encroachments over, a statement as to whether across or upon any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable Assets’ boundary lines, rights of way or easements, and no building or other improvements on adjoining land create such an encroachment which could reasonably be expected to such assethave a Material Adverse Effect. Simultaneously All public roads and streets necessary for service of and access to each of the Borrowing Base Assets for the current and contemplated uses thereof have been completed and are serviceable and are physically and legally open for use by the public. To the Loan Parties’ knowledge after due inquiry, any septic system located at any of the Borrowing Base Assets is in good and safe condition and repair and in compliance with all applicable law in all material respects.
(v) Each of the Borrowing Base Assets is comprised of one (1) or more parcels which constitute separate tax lots. No part of any of the Borrowing Base Assets is included or assessed under or as part of another tax lot or parcel, and no part of any other property is included or assessed under or as part of the tax lots or parcels comprising any of the Borrowing Base Assets.
(vi) Neither the Borrower nor any of the Guarantors has received any outstanding notice from any insurer or its agent requiring performance of any work with respect to any of the Borrowing Base Assets or canceling or threatening to cancel any policy of insurance, and each of the Borrowing Base Assets complies with the delivery material requirements of all of the items required pursuant above, Borrower’s and the Borrower shall deliver to the Agent an updated Borrowing Base Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in §§5.4, 7.20, 9.1, 9.6, 9.7, 9.8, 9.9 and 9.10Guarantor’s insurance carriers.
Appears in 2 contracts
Samples: Credit Agreement (Campus Crest Communities, Inc.), Credit Agreement (Campus Crest Communities, Inc.)
Borrowing Base Assets. (a) The Eligible Real Estate and Borrowing Base Loans included in the calculation of the Borrowing Base Availability Appraised Value Limit shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate shall be owned one hundred percent (100%) in fee simple, or leased under a Ground LeaseLease as to which no Ground Lease Default has occurred, by a Wholly Owned Subsidiary of the Borrower that is or a Subsidiary Guarantor, in each case free and clear of all Liens other than the Liens permitted in §8.2(i) and (ixiv), and other Liens approved in writing by Agent, and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents);
(ii) none of the Eligible Real Estate shall have any material title, survey, environmental, structural or other defects except that would give rise to a materially adverse effect as reasonably approved by to the Agent value, use of or ability to sell or refinance such property, and the Required Lendersall representations and warranties with respect to such Eligible Real Estate shall be true and correct without giving effect to any knowledge qualifier with respect to any such representation or warranty;
(iii) if such Eligible Real Estate is held by a Subsidiary Guarantor, the only asset of such Subsidiary Guarantor shall be Eligible Real Estate included in the calculation of the Borrowing Base AvailabilityAppraised Value Limit;
(iv) each Operator’s Agreement and Lease with a Major Tenant for a Borrowing Base Property shall obligate such Eligible Real Estate is self-managed by the Operator or tenant to provide to Borrower or Borrower, the applicable Subsidiary Guarantor sufficient and timely financial information, separate for or is managed by the specific location at the Borrowing Base Property, Property Manager pursuant to permit calculation of clause (b) of the definition of Adjusted Net Operating Income and determine whether such property is an EBITDAR Stabilized Property or a Newly-Built PropertyManagement Agreement;
(v) [Intentionally Omitted];
each Eligible Real Estate or portion thereof shall be leased to an Eligible Tenant, and each such tenant under a Lease at such Eligible Real Estate must not be past due with respect to any payment obligation more than ninety (vi90) no days and in material compliance with all other obligations under its lease, and not subject to any Insolvency Event; provided, however, that if such Eligible Real Estate is a multi-tenant or group facility and a tenant thereof if subject to an Insolvency Proceeding, such Eligible Real Estate may be included in the calculation of Affiliates thereof which leases ninety the Borrowing Base Appraised Value Limit if such tenant does not lease more than forty percent (9040%) or more of the Net Rentable Area of such Eligible Real Estate;
(vi) on and after the first anniversary of the Closing Date, no Eligible Real Estate which are subject to a lease or leases to (A) is in default of base rent any single tenant rated at least BBB or other material payment obligations under its respective Lease the equivalent thereof by S&P or at least Baa2 or the equivalent thereof by Mxxxx’x or any Affiliate thereof shall account for more than seventy-five fifty percent (7550%) days beyond of the date upon which such payment obligations were due, Borrowing Base Appraised Value Limit (and any excess shall be excluded from the Borrowing Base Appraised Value Limit) or (B) is subject to any bankruptcyother single tenant or any Affiliate thereof shall account for more than thirty-five percent (35%) of the Borrowing Base Appraised Value Limit (and any excess shall be excluded from the Borrowing Base Appraised Value Limit) (in each case, reorganizationfor the purposes hereof, arrangement, insolvency, readjustment tenants shall not be considered Affiliates of debt, dissolution, liquidation or similar debtor relief proceedingeach other solely by virtue of having common ownership by an equity fund provided that their financial results are not consolidated with a common parent entity);
(vii) on and after the first anniversary of the Closing Date, the aggregate Appraised Value and Property Cost of the Eligible Real Estate constituting LTACs, Rehabs or ASCs shall not exceed thirty-five percent (35%) of the Borrowing Base Appraised Value Limit (and any excess shall be excluded from the Borrowing Base Appraised Value Limit); and
(viii) the Primary License of such Eligible Real Estate shall not have been revoked or the subject of any revocation proceedingproceeding or, no event or circumstance shall have occurred or exist which would result in with respect to an SNF, the Operator thereof is no longer being entitled to reimbursement under Medicare or Medicaid and the Operator shall be in compliance in all material respects with all applicable Healthcare Laws and accreditation and registration standards and requirements of the applicable State Regulator, in each case, as are now in effect and which may be imposed upon such Operator or the maintenance, use or operation of the Borrowing Base Properties or the provision of services to the occupants of the Borrowing Base Properties;
(viii) there shall have been at no time any change in any Major Tenant of a Borrowing Base Property (whether by assignment, substitution or otherwise) from the Major Tenants of such Borrowing Base Property as of the date of acceptance of such Real Estate as a Borrowing Base Property unless approved by Agent in writing; and
(ix) if such Borrowing Base Asset is a Borrowing Base Loan, such Borrowing Base Loan shall at all times satisfy all of the following conditions:
(A) such Borrowing Base Loan is secured by real estate that satisfies the requirements of clauses (b), (c), (d), (f), (g), (h) and (i) of the definition of Eligible Real Estate;
(B) the real estate subject to the Borrowing Base Loan shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by the Collateral Borrower, free and clear of all Liens other than the Liens securing the Borrowing Base Loans and other Liens approved in writing by Agent;
(C) none of the real estate securing the Borrowing Base Loan shall have any material environmental, structural, title or other defects, and not be subject to any condemnation proceeding, that in any event would give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or finance such property;
(D) Borrower’s or the applicable Subsidiary Guarantor’s entire interest in the Borrowing Base Loan shall have been assigned to Agent pursuant to the Security Documents and Agent shall have a perfected first priority security interest therein. Without limiting the foregoing, no interest in any Borrowing Base Loan Document shall have been pledged or assigned to any Person other than the pledge to Agent;
(E) the Borrowing Base Loan Documents shall be owned one hundred percent (100%) by the Borrower or a Subsidiary Guarantor free and clear of all Liens, other than the Lien in favor of Agent for the benefit of the Lenders and the Lender Hedge Providers, and of any claims or rights of participation of any other Person, and free of any restrictions on transfer, assignment or pledge thereof;
(F) for any Borrowing Base Loans added after the date of this Agreement, the maturity date (inclusive of any extension options) of the Borrowing Base Loan must be not later than November 7, 2020, and the Borrowing Base Loan Documents for Borrowing Base Loans shall otherwise be in form and substance satisfactory to Agent;
(G) the Borrowing Base Loan shall not be a Defaulted Loan or a Delinquent Loan;
(H) except as approved by Agent, the Collateral Borrower shall have no Indebtedness other than the Borrowing Base Loan and other Indebtedness applicable to the real estate and of the type permitted under §8.1(c) or (d);
(I) the Borrowing Base Loan and Borrowing Base Loan Documents shall satisfy each other condition in this Agreement and the other Loan Documents applicable thereto; and
(J) commencing when any Borrowing Base Loan is added as a Borrowing Base Asset, when aggregated with the Initial Borrowing Base Loans, not more than twenty percent (20%) of the Borrowing Base Availability shall at any time be attributable to Borrowing Base LoansMedicaid.
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Borrowing Base Availability Appraised Value Limit shall be damaged in any material respect or taken by condemnation, then such property shall no longer be included in the calculation of the Borrowing Base Availability Appraised Value Limit unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the value of such real estate following such repair or restoration (both at such time and prospectively) or (ii) the Agent shall receive evidence satisfactory to the Agent (which evidence may include the availability of rent loss and other insurance) that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation. In the event that such damage or condemnation only partially affects such Eligible Real Estate included in the calculation of the Borrowing Base AvailabilityAppraised Value Limit, then the Required Lenders may in good faith reduce the Borrowing Base Availability Appraised Value Limit attributable thereto based on such damage until such time as the Required Lenders receive evidence satisfactory to the Required Lenders that the value of such real estate (both at such time and prospectively) shall no longer be materially adversely affected by such damage or condemnation.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Borrowing Base AvailabilityAppraised Value Limit, such asset shall no longer be included in the calculation of the Borrowing Base Availability Appraised Value Limit unless otherwise approved in writing by the Required Lenders. Within five (5) Business Days after becoming aware of any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability Appraised Value Limit attributable to such asset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent an updated Borrowing Base Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in §§5.4, 7.20, 5.4 and 9.1, 9.6, 9.7, 9.8, 9.9 and 9.10.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (American Realty Capital Healthcare Trust Inc)
Borrowing Base Assets. (a) The Eligible Real Estate and Borrowing Base Loans included in the calculation of the Borrowing Base Availability shall at all times satisfy all of the following conditions:
(i) such Real Estate that is a Borrowing Base Property shall be Eligible Real Estate, and the Eligible Real Estate shall be owned one hundred percent (100%) in fee simple, or leased under a Ground Lease, simple by a Wholly Wholly-Owned Subsidiary of Borrower that is a Subsidiary Guarantor, in each case free and clear of all Liens and negative pledges other than the Liens permitted in §8.2(i) and (ix), and other Liens approved in writing by Agent, and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents);
(ii) none of the Eligible Real Estate shall have any material title, survey, environmental, structural or other defects except as reasonably approved by the Agent and the Required Lenders;
(iii) if such Eligible Real Estate is held by a Subsidiary Guarantor, the only asset of such Subsidiary Guarantor shall be Eligible Real Estate or Borrowing Base Loan, as applicable, included in the calculation of the Borrowing Base Availability;
(iii) no Person other than the Borrower has any direct or indirect ownership of any legal, equitable or beneficial interest in such Subsidiary Guarantor, and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor shall be subject to any Lien except any Lien in favor of Agent pursuant to the Loan Documents;
(iv) each Operator’s Agreement and Lease with a Major Tenant for none of the Eligible Real Estate that is a Borrowing Base Property shall obligate be subject to any condemnation proceeding that in any event would give rise to a materially adverse effect as to the Operator value, use of, operation of or tenant ability to provide to Borrower sell or the applicable Subsidiary Guarantor sufficient finance such property, and timely financial information, separate for the specific location at the Borrowing Base Property, to permit calculation of clause (b) of the definition of Adjusted Net Operating Income and determine whether such property shall be in compliance with federally mandated flood insurance requirements (including the maintenance of flood insurance if all or any portion of any Building is an EBITDAR Stabilized Property or located within a Newly-Built Propertyfederally designated flood hazard zone);
(v) [Intentionally Omitted];
(vi) no tenant or group of Affiliates thereof which leases ninety percent (90%) or more of the Net Rentable Area of such Real Estate (A) is in default of base rent or other material payment obligations under its respective Lease for more than seventy-five (75) days beyond the date upon which such payment obligations were due, or (B) is subject to any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation or similar debtor relief proceeding;
(vii) the Primary License of such Eligible Real Estate shall not have been revoked or is (1) managed by a Manager approved by the subject of any revocation proceeding, no event or circumstance shall have occurred or exist which would result in the Operator thereof no longer being entitled to reimbursement Agent; and (2) operated under Medicare or Medicaid and the Operator shall be in compliance in all material respects with all applicable Healthcare Laws and accreditation and registration standards and requirements of the applicable State Regulator, in each case, as are now in effect and which may be imposed upon such Operator or the maintenance, use or operation of the Borrowing Base Properties or the provision of services a Management Agreement reasonably satisfactory to the occupants of the Borrowing Base Properties;
(viii) there shall have been at no time any change in any Major Tenant of a Borrowing Base Property (whether by assignment, substitution or otherwise) from the Major Tenants of such Borrowing Base Property as of the date of acceptance of such Real Estate as a Borrowing Base Property unless approved by Agent in writingAgent; and
(ixvi) if such Borrowing Base Asset is a Borrowing Base Loan, such Borrowing Base Loan shall at all times satisfy all of the following conditions:
(A) such Borrowing Base Loan is secured by real estate that satisfies the requirements of clauses (b), (c), (d), (f), (g), (hi) and (ij) of the definition of Eligible Real Estate;
(B) the real estate subject to the Borrowing Base Loan shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by the Collateral Borrower, free and clear of all Liens other than the Liens securing the Borrowing Base Loans and other Liens approved in writing by Agent, and except as approved in writing by the Required Lenders, the Borrower, the Guarantors and their respective Subsidiaries and Affiliates shall have no direct or indirect interest in the Collateral Borrower (except for a Profits Participation); provided that in connection with the exercise by Borrower of its right to purchase all of the equity interests in the Collateral Borrower not owned by Borrower or its Subsidiaries, Borrower shall be permitted to own all of the equity interests in the Collateral Borrower for a period of not more than ninety (90) days, as such period may be extended by the Agent in its sole discretion, provided that Borrower has delivered to Agent written notice of the acquisition of such equity interests not less than ten (10) Business Days prior to such acquisition;
(C) none of the real estate securing the Borrowing Base Loan shall have any material environmental, structural, title or other defects, and not be subject to any condemnation proceeding, proceeding that in any event would give rise to a materially material adverse effect as to the value, cash flow, use of, operation of or ability to sell or finance such property;
(D) Borrower’s or the applicable Subsidiary Guarantor’s entire interest in the Borrowing Base Loan shall have been assigned to Agent pursuant to the Security Documents and Agent shall have a perfected first priority security interest therein. Without limiting the foregoing, no interest in any Borrowing Base Loan Document shall have been participated, pledged or assigned to any Person other than the pledge to Agent;
(E) the Borrowing Base Loan Documents shall be owned one hundred percent (100%) by the Borrower or a Subsidiary Guarantor free and clear of all Liens, other than the Lien in favor of Agent for the benefit of the Lenders and the Lender Hedge Providers, and of any claims or rights of participation of any other Person, and free of any restrictions on transfer, assignment or pledge thereof;
(F) for any Borrowing Base Loans added after the date of this Agreement, the maturity date (inclusive of any extension options) of the Borrowing Base Loan must be not later than November 7, 2020, and the Borrowing Base Loan Documents for Borrowing Base Loans shall otherwise be in form and substance reasonably satisfactory to Agent;
(G) the Borrowing Base Loan shall not be a Defaulted Loan or a Delinquent Loan;
(H) except as approved by Agent, the Collateral Borrower shall have no Indebtedness other than the Borrowing Base Loan and other Indebtedness applicable to the real estate and of the type permitted under §8.1(c) or (d)) and there shall be no so-called “mezzanine loan” secured by the Equity Interests in such Collateral Borrower. Notwithstanding the foregoing, a Mezzanine Loan shall be permitted provided that such loan is pledged to Agent as additional Collateral pursuant to the Assignment of Documents and is subject to a Subordination and Standstill Agreement;
(I) the Borrowing Base Loan and Borrowing Base Loan Documents shall satisfy each other condition in this Agreement and the other Loan Documents applicable thereto;
(J) the real estate asset that secures such Borrowing Base Loan is open and in lease-up and has received a certificate of occupancy or temporary certificate of occupancy from the local government agency or building department if required pursuant to Applicable Law;
(K) the Borrowing Base Loan has adequate unfunded capacity based upon Borrower’s usual and customary underwriting as reasonably approved by Agent to cover estimated carry costs, interest payments and tenants costs to reach stabilization; and
(JL) commencing when any the underlying Borrowing Base Loan is added as a Borrowing Base Asset, when aggregated with must require the Initial Borrowing Base Loans, not more than twenty percent (20%) Collateral Borrower to provide financial reports to allow calculation and testing of the Borrowing Base Availability shall at any time be attributable to Borrowing Base LoansAvailability.
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Borrowing Base Availability shall be damaged in any material respect or taken by condemnation, then such property shall no longer be included in the calculation of the Borrowing Base Availability unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the value of such real estate following such repair or restoration (both at such time and prospectively) or (ii) the Agent shall receive evidence satisfactory to the Agent (which evidence may include the availability of rent loss and other insurance) that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation. In the event that such damage or condemnation only partially affects such Eligible Real Estate included in the calculation of the Borrowing Base Availability, then the Required Lenders Agent may in good faith reduce the Borrowing Base Availability attributable thereto based on such damage until such time as the Required Lenders receive Agent receives evidence satisfactory to the Required Lenders Agent that the value of such real estate (both at such time and prospectively) shall no longer be materially adversely affected by such damage or condemnation.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Borrowing Base Availability, such asset shall no longer be included in the calculation of the Borrowing Base Availability unless otherwise approved in writing by the Required Lenders. Within five (5) Business Days after becoming aware of any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable to such asset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent an updated Borrowing Base Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in §§5.4, 7.207.19 and 9.1.
(d) Upon the inclusion of a Borrowing Base Property, 9.1Borrower shall designate whether such Borrowing Base Property shall be Stabilized Real Estate Collateral or Non-Stabilized Real Estate Collateral. Provided no Default or Event of Default would arise, 9.6, 9.7, 9.8, 9.9 Borrower may at any time designate Non-Stabilized Real Estate Collateral to be Stabilized Real Estate Collateral by delivery of written notice to Agent together with an updated Borrowing Base Certificate and 9.10a calculation of Borrowing Base Availability. In no event may a Borrowing Base Property that is Stabilized Real Estate Collateral be designated as Non-Stabilized Real Estate Collateral.
Appears in 1 contract
Borrowing Base Assets. (a) The Eligible Real Estate and Borrowing Base Loans included in the calculation of the Borrowing Base Availability shall at all times satisfy all of the following conditions:
(i) such Real Estate that is a Borrowing Base Property shall be Eligible Real Estate, and the Eligible Real Estate shall be owned one hundred percent (100%) in fee simple, or leased under a Ground Lease, simple by a Wholly Wholly-Owned Subsidiary of Borrower that is a Subsidiary Guarantor, in each case free and clear of all Liens and negative pledges other than the Liens permitted in §8.2(i) and (ix), and other Liens approved in writing by Agent, and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents);
(ii) none of the Eligible Real Estate shall have any material title, survey, environmental, structural or other defects except as reasonably approved by the Agent and the Required Lenders;
(iii) if such Eligible Real Estate is held by a Subsidiary Guarantor, the only asset of such Subsidiary Guarantor shall be Eligible Real Estate or Borrowing Base Loan, as applicable, included in the calculation of the Borrowing Base Availability;
(iii) no Person other than the Borrower has any direct or indirect ownership of any legal, equitable or beneficial interest in such Subsidiary Guarantor, and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor shall be subject to any Lien except any Lien in favor of Agent pursuant to the Loan Documents;
(iv) each Operator’s Agreement and Lease with a Major Tenant for none of the Eligible Real Estate that is a Borrowing Base Property shall obligate be subject to any condemnation proceeding that in any event would give rise to a materially adverse effect as to the Operator value, use of, operation of or tenant ability to provide to Borrower sell or the applicable Subsidiary Guarantor sufficient finance such property, and timely financial information, separate for the specific location at the Borrowing Base Property, to permit calculation of clause (b) of the definition of Adjusted Net Operating Income and determine whether such property shall be in compliance with federally mandated flood insurance requirements (including the maintenance of flood insurance if all or any portion of any Building is an EBITDAR Stabilized Property or located within a Newly-Built Propertyfederally designated flood hazard zone);
(v) [Intentionally Omitted];
(vi) no tenant or group of Affiliates thereof which leases ninety percent (90%) or more of the Net Rentable Area of such Real Estate (A) is in default of base rent or other material payment obligations under its respective Lease for more than seventy-five (75) days beyond the date upon which such payment obligations were due, or (B) is subject to any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation or similar debtor relief proceeding;
(vii) the Primary License of such Eligible Real Estate shall not have been revoked or is (1) managed by a Manager approved by the subject of any revocation proceeding, no event or circumstance shall have occurred or exist which would result in the Operator thereof no longer being entitled to reimbursement Agent; and (2) operated under Medicare or Medicaid and the Operator shall be in compliance in all material respects with all applicable Healthcare Laws and accreditation and registration standards and requirements of the applicable State Regulator, in each case, as are now in effect and which may be imposed upon such Operator or the maintenance, use or operation of the Borrowing Base Properties or the provision of services a Management Agreement reasonably satisfactory to the occupants of the Borrowing Base Properties;
(viii) there shall have been at no time any change in any Major Tenant of a Borrowing Base Property (whether by assignment, substitution or otherwise) from the Major Tenants of such Borrowing Base Property as of the date of acceptance of such Real Estate as a Borrowing Base Property unless approved by Agent in writingAgent; and
(ixvi) if such Borrowing Base Asset is a Borrowing Base Loan, such Borrowing Base Loan shall at all times satisfy all of the following conditions:
(A) such Borrowing Base Loan is secured by real estate that satisfies the requirements of clauses (b), (c), (d), (f), (g), (h) and (i) of the definition of Eligible Real Estate;
(B) the real estate subject to the Borrowing Base Loan shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by the Collateral Borrower, free and clear of all Liens other than the Liens securing the Borrowing Base Loans and other Liens approved in writing by Agent, and except as approved in writing by the Required Lenders, the Borrower, the Guarantors and their respective Subsidiaries and Affiliates shall have no direct or indirect interest in the Collateral Borrower (except for a Profits Participation); provided that in connection with the exercise by Borrower of its right to purchase all of the equity interests in the Collateral Borrower not owned by Borrower or its Subsidiaries, Borrower shall be permitted to own all of the equity interests in the Collateral Borrower for a period of not more than ninety (90) days, as such period may be extended by the Agent in its sole discretion, provided that Borrower has delivered to Agent written notice of the acquisition of such equity interests not less than ten (10) Business Days prior to such acquisition;
(C) none of the real estate securing the Borrowing Base Loan shall have any material environmental, structural, title or other defects, and not be subject to any condemnation proceeding, proceeding that in any event would give rise to a materially material adverse effect as to the value, cash flow, use of, operation of or ability to sell or finance such property;
(D) Borrower’s or the applicable Subsidiary Guarantor’s entire interest in the Borrowing Base Loan shall have been assigned to Agent pursuant to the Security Documents and Agent shall have a perfected first priority security interest therein. Without limiting the foregoing, no interest in any Borrowing Base Loan Document shall have been participated, pledged or assigned to any Person other than the pledge to Agent;
(E) the Borrowing Base Loan Documents shall be owned one hundred percent (100%) by the Borrower or a Subsidiary Guarantor free and clear of all Liens, other than the Lien in favor of Agent for the benefit of the Lenders and the Lender Hedge Providers, and of any claims or rights of participation of any other Person, and free of any restrictions on transfer, assignment or pledge thereof;
(F) for any Borrowing Base Loans added after the date of this Agreement, the maturity date (inclusive of any extension options) of the Borrowing Base Loan must be not later than November 7, 2020, and the Borrowing Base Loan Documents for Borrowing Base Loans shall otherwise be in form and substance reasonably satisfactory to Agent;
(G) the Borrowing Base Loan shall not be a Defaulted Loan or a Delinquent Loan;
(H) except as approved by Agent, the Collateral Borrower shall have no Indebtedness other than the Borrowing Base Loan and other Indebtedness applicable to the real estate and of the type permitted under §8.1(c) or (d)) and there shall be no so-called “mezzanine loan” secured by the Equity Interests in such Collateral Borrower. Notwithstanding the foregoing, a Mezzanine Loan shall be permitted provided that such loan is pledged to Agent as additional Collateral pursuant to the Assignment of Documents and is subject to a Subordination and Standstill Agreement;
(I) the Borrowing Base Loan and Borrowing Base Loan Documents shall satisfy each other condition in this Agreement and the other Loan Documents applicable thereto;
(J) the real estate asset that secures such Borrowing Base Loan is open and in lease-up and has received a certificate of occupancy or temporary certificate of occupancy from the local government agency or building department if required pursuant to Applicable Law;
(K) the Borrowing Base Loan has adequate unfunded capacity based upon Borrower’s usual and customary underwriting as reasonably approved by Agent to cover estimated carry costs, interest payments and tenants costs to reach stabilization; and
(JL) commencing when any the underlying Borrowing Base Loan is added as a Borrowing Base Asset, when aggregated with must require the Initial Borrowing Base Loans, not more than twenty percent (20%) Collateral Borrower to provide financial reports to allow calculation and testing of the Borrowing Base Availability shall at any time be attributable to Borrowing Base LoansAvailability.
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Borrowing Base Availability shall be damaged in any material respect or taken by condemnation, then such property shall no longer be included in the calculation of the Borrowing Base Availability unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the value of such real estate following such repair or restoration (both at such time and prospectively) or (ii) the Agent shall receive evidence satisfactory to the Agent (which evidence may include the availability of rent loss and other insurance) that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation. In the event that such damage or condemnation only partially affects such Eligible Real Estate included in the calculation of the Borrowing Base Availability, then the Required Lenders Agent may in good faith reduce the Borrowing Base Availability attributable thereto based on such damage until such time as the Required Lenders receive Agent receives evidence satisfactory to the Required Lenders Agent that the value of such real estate (both at such time and prospectively) shall no longer be materially adversely affected by such damage or condemnation.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Borrowing Base Availability, such asset shall no longer be included in the calculation of the Borrowing Base Availability unless otherwise approved in writing by the Required Lenders. Within five (5) Business Days after becoming aware of any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable to such asset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent an updated Borrowing Base Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in §§5.4, 7.207.19 and 9.1.
(d) Upon the inclusion of a Borrowing Base Property, 9.1Borrower shall designate whether such Borrowing Base Property shall be Stabilized Real Estate Collateral or Non-Stabilized Real Estate Collateral. Provided no Default or Event of Default would arise, 9.6, 9.7, 9.8, 9.9 Borrower may at any time designate Non-Stabilized Real Estate Collateral to be Stabilized Real Estate Collateral by delivery of written notice to Agent together with an updated Borrowing Base Certificate and 9.10a calculation of Borrowing Base Availability. In no event may a Borrowing Base Property that is Stabilized Real Estate Collateral be designated as Non-Stabilized Real Estate Collateral.
Appears in 1 contract
Borrowing Base Assets. (a) The Eligible Real Estate and Borrowing Base Loans included in the calculation Each of the Borrowing Base Availability Assets shall at all times be owned one hundred percent (100%) by a Borrower (in fee simple as to Real Estate) and shall satisfy all of the following conditions:
(i) each of the Eligible Real Estate Borrowing Base Assets shall be owned one hundred percent (100%) in fee simple, or leased under a Ground Lease, by a Wholly Owned Subsidiary of Borrower that is a Subsidiary Guarantor, in each case free and clear of all Liens other than the Liens permitted in §Section 8.2(i), (iii), (iv) and (ix)v) or, with respect to the Borrowing Base Assets described in clauses (f) and other Liens approved in writing (g) of the definition of the term "Borrowing Base", liens permitted by Agent, and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documentsSection 8.2(vi);
(ii) to the best of the Borrowers' knowledge and belief, none of the Eligible Real Estate Borrowing Base Assets shall have any material title, survey, environmental, structural environmental or other defects except as reasonably approved by the Agent and the Required Lenders;
(iii) if such Eligible Real Estate is held by a Subsidiary Guarantor, the only asset of such Subsidiary Guarantor shall be Eligible Real Estate included in the calculation of the Borrowing Base Availability;
(iv) each Operator’s Agreement and Lease with a Major Tenant for a Borrowing Base Property shall obligate the Operator or tenant to provide to Borrower or the applicable Subsidiary Guarantor sufficient and timely financial information, separate for the specific location at the Borrowing Base Property, to permit calculation of clause (b) of the definition of Adjusted Net Operating Income and determine whether such property is an EBITDAR Stabilized Property or a Newly-Built Property;
(v) [Intentionally Omitted];
(vi) no tenant or group of Affiliates thereof which leases ninety percent (90%) or more of the Net Rentable Area of such Real Estate (A) is in default of base rent or other material payment obligations under its respective Lease for more than seventy-five (75) days beyond the date upon which such payment obligations were due, or (B) is subject to any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation or similar debtor relief proceeding;
(vii) the Primary License of such Eligible Real Estate shall not have been revoked or the subject of any revocation proceeding, no event or circumstance shall have occurred or exist which would result in the Operator thereof no longer being entitled to reimbursement under Medicare or Medicaid and the Operator shall be in compliance in all material respects with all applicable Healthcare Laws and accreditation and registration standards and requirements of the applicable State Regulator, in each case, as are now in effect and which may be imposed upon such Operator or the maintenance, use or operation of the Borrowing Base Properties or the provision of services to the occupants of the Borrowing Base Properties;
(viii) there shall have been at no time any change in any Major Tenant of a Borrowing Base Property (whether by assignment, substitution or otherwise) from the Major Tenants of such Borrowing Base Property as of the date of acceptance of such Real Estate as a Borrowing Base Property unless approved by Agent in writing; and
(ix) if such Borrowing Base Asset is a Borrowing Base Loan, such Borrowing Base Loan shall at all times satisfy all of the following conditions:
(A) such Borrowing Base Loan is secured by real estate that satisfies the requirements of clauses (b), (c), (d), (f), (g), (h) and (i) of the definition of Eligible Real Estate;
(B) the real estate subject to the Borrowing Base Loan shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by the Collateral Borrower, free and clear of all Liens other than the Liens securing the Borrowing Base Loans and other Liens approved in writing by Agent;
(C) none of the real estate securing the Borrowing Base Loan shall have any material environmental, structural, title or other defects, and not be subject to any condemnation proceeding, that in any event would give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or finance refinance such property;
(Diii) Borrower’s or with respect to the Partial Interests, the Partnership to which the Partial Interest relates shall own the applicable Subsidiary Guarantor’s entire interest in the Borrowing Base Loan shall have been assigned to Agent pursuant to the Security Documents and Agent shall have a perfected first priority security interest therein. Without limiting the foregoing, no interest in any Borrowing Base Loan Document shall have been pledged or assigned to any Person other than the pledge to Agent;
(E) the Borrowing Base Loan Documents shall be owned Real Estate one hundred percent (100%) by the Borrower or a Subsidiary Guarantor free and clear of all Liens, other than the Lien in favor of Agent for the benefit of the Lenders and the Lender Hedge Providersfee simple, and such Real Estate shall otherwise comply with the terms of any claims or rights of participation of any other Person, and free of any restrictions on transfer, assignment or pledge thereofthis Agreement;
(F) for any Borrowing Base Loans added after the date of this Agreement, the maturity date (inclusive of any extension options) of the Borrowing Base Loan must be not later than November 7, 2020, and the Borrowing Base Loan Documents for Borrowing Base Loans shall otherwise be in form and substance satisfactory to Agent;
(Giv) the Borrowing Base Loan Assets (including Properties Under Construction) which are derived from or are intended to become income producing operating properties shall not be a Defaulted Loan utilized (or a Delinquent Loanwith respect to Properties Under Construction upon completion will be utilized) principally for office, retail, research/industrial, office/warehouse, warehouse/distribution or multifamily housing;
(H) except as approved by Agent, the Collateral Borrower shall have no Indebtedness other than the Borrowing Base Loan and other Indebtedness applicable to the real estate and of the type permitted under §8.1(c) or (d);
(Iv) the Borrowing Base Loan Assets (other than Properties Under Construction) which are or derive from income producing operating properties (A) shall be (1) fully operational; and (2) properties for which valid certificates of occupancy or the equivalent for all buildings thereon have been issued and are in full force and effect; and (B) on an aggregate basis (1) such Borrowing Base Loan Documents Assets (excluding multi-family housing and the Conference Center) are eighty percent (80%) leased pursuant to bona- fide arm's length leases to third parties unaffiliated with any Borrower, any of the General Partners, any Guarantor or any of the Controlled Subsidiaries of any Borrower; or (2) with respect to multi-family housing only, such Borrowing Base Assets are eighty-five percent (85%) leased pursuant to bona-fide arm's length leases; and (C) there is no material Indebtedness with respect to such Borrowing Base Asset secured thereby which is subject to acceleration or is accelerated. In the event that any of such property described in (B)(1) is leased to an Affiliate of a Borrower, any of the General Partners, any Guarantor or any of the Controlled Subsidiaries of a Borrower, the square footage subject to such lease shall be deducted from the overall square footage of the project and excluded in calculating compliance with the occupancy requirement; and in determining whether a new Real Estate Asset can be included in the Borrowing Base only the portfolio leasing test set forth in (B)(1) or (B)(2) for that property applies; and
(vi) each of such Borrowing Base Assets shall satisfy each other condition in this Agreement and the other Loan Documents applicable thereto; and
(J) commencing when any Borrowing Base Loan is added as a Borrowing Base Asset, when aggregated with the Initial Borrowing Base Loans, not more than twenty percent (20%) of the Borrowing Base Availability shall at any time be attributable to Borrowing Base Loans.
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Borrowing Base Availability The Borrowers shall be damaged in any material respect or taken by condemnation, then such property shall no longer be included in the calculation of the Borrowing Base Availability unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational and the Agent shall receive evidence satisfactory provide to the Agent as of the value of such real estate following such repair or restoration (both at such time July 31,1997 and prospectively) or (ii) the Agent shall receive evidence satisfactory to the Agent (which evidence may include the availability of rent loss and other insurance) that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation. In the event that such damage or condemnation only partially affects such Eligible Real Estate included in the calculation of the Borrowing Base Availability, then the Required Lenders may in good faith reduce the Borrowing Base Availability attributable thereto based on such damage until such time as the Required Lenders receive evidence satisfactory to the Required Lenders that the value of such real estate (both at such time and prospectively) shall no longer be materially adversely affected by such damage or condemnation.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Borrowing Base Availability, such asset shall no longer be included in the calculation of the Borrowing Base Availability unless otherwise approved in writing by the Required Lenders. Within five (5) Business Days after becoming aware of any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable to such asset. Simultaneously concurrently with the delivery of the items required pursuant above, financial statements described in Section 7.4(a) or 7.4(b) (i) a list of the Borrower shall deliver to the Agent an updated Borrowing Base Certificate demonstratingAssets, after giving effect to (ii) the certification of the Principal Financial Officer of each Borrower of the Adjusted Values and that such removal or disqualification, properties are in compliance with this Section 7.19 and Section 9.3, and (iii) that the conditions Borrowing Base Assets comply with the terms of Section s 6.17 and covenants contained in §§5.4, 7.20, 9.1, 9.6, 9.7, 9.8, 9.9 and 9.106.
Appears in 1 contract
Samples: Master Credit Agreement (Wellsford Real Properties Inc)
Borrowing Base Assets. (a) The Eligible Real Estate Mortgaged Properties and Borrowing Base Loans included in the calculation of the Borrowing Base Availability shall at all times satisfy all of the following conditions:
(i) the Eligible Real Estate Mortgaged Properties shall be owned one hundred percent (100%) in fee simple, or leased under a Ground Lease, by a Wholly Owned Subsidiary of the Borrower that is or a Subsidiary Guarantor, in each case free and clear of all Liens other than the Liens permitted in §8.2(i) and (ix), and other Liens approved in writing by Agent, and such Eligible Real Estate Mortgaged Properties shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents);
(ii) none of the Eligible Real Estate Mortgaged Properties shall have any material title, survey, environmental, structural or other defects except as reasonably approved by the Agent and the Required Lenders;
(iii) if such Eligible Real Estate Mortgaged Property is held by a Subsidiary Guarantor, the only asset of such Subsidiary Guarantor shall be Eligible Real Estate the Mortgaged Property included in the calculation of the Borrowing Base Availability;
(iv) each such Mortgaged Property is managed by an Operator under an Operator’s Agreement and Lease with a Major Tenant for a Borrowing Base Property shall obligate the Operator or tenant to provide to Borrower or the applicable Subsidiary Guarantor sufficient and timely financial informationAgreement, separate for the specific location at the Borrowing Base Property, to permit calculation of clause (b) of the definition of Adjusted Net Operating Income and determine whether such property is an EBITDAR Stabilized Property or a Newly-Built Propertyeach as approved by Agent;
(v) [Intentionally Omitted];
each Mortgaged Property that is an MOB or is leased to a single Operator shall be leased to an Eligible Tenant, and each such Eligible Tenant under a Lease at such Mortgaged Property must not be past due with respect to any payment obligation more than ninety (vi90) no days, not in default of any other material obligation under its Lease for more than thirty (30) days, and not subject to any Insolvency Event; provided, however, that if such Mortgaged Property is an MOB and a tenant thereof is past due with respect to any payment obligation more than ninety (90) days, in default of any other material obligation for more than thirty (30) days, or subject to an Insolvency Proceeding, such Mortgaged Property may be included in the calculation of the Borrowing Base Appraised Value Limit if such tenant or group tenants subject to any of Affiliates thereof which leases ninety such conditions in the aggregate do not lease more than thirty percent (9030%) or more of the Net Rentable Area of such Real Estate (A) is in default of base rent or other material payment obligations under its respective Lease for more than seventy-five (75) days beyond the date upon which such payment obligations were due, or (B) is subject to any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation or similar debtor relief proceedingMortgaged Property;
(viivi) the Primary License of such Eligible Real Estate Mortgaged Property shall not have been revoked or be the subject of any revocation proceedingproceeding or, no event or circumstance shall have occurred or exist which would result in with respect to an SNF, the Operator thereof is no longer being entitled to reimbursement under Medicare or Medicaid and the Operator shall be in compliance in all material respects with all applicable Healthcare Laws and accreditation and registration standards and requirements of the applicable State Regulator, in each case, as are now in effect and which may be imposed upon such Operator or the maintenance, use or operation of the Borrowing Base Properties or the provision of services to the occupants of the Borrowing Base Properties;
(viii) there shall have been at no time any change in any Major Tenant of a Borrowing Base Property (whether by assignment, substitution or otherwise) from the Major Tenants of such Borrowing Base Property as of the date of acceptance of such Real Estate as a Borrowing Base Property unless approved by Agent in writingMedicaid; and
(ixvii) if such Borrowing Base Asset is a Borrowing Base Loan, such Borrowing Base Loan shall at all times satisfy all of the following conditions:
(A) such Borrowing Base Loan is secured by real estate that satisfies the requirements of clauses (b), (c), (d), (f), (g), (h), (i) and (ij) of the definition of Eligible Real Estate;
(B) the real estate subject to the Borrowing Base Loan shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by the Collateral Borrower, free and clear of all Liens other than the Liens securing the Borrowing Base Loans and other Liens approved in writing by Agent;
(C) none of the real estate securing the Borrowing Base Loan shall have any material environmental, structural, title or other defects, and not be subject to any condemnation proceeding, that in any event would give rise to a materially adverse effect as to the value, use of, operation of or ability to sell or finance such propertyreal estate;
(D) Borrower’s or the applicable Subsidiary Guarantor’s entire interest in the Borrowing Base Loan shall have been assigned to Agent pursuant to the Security Documents and Agent shall have a perfected first priority security interest therein. Without limiting the foregoing, no interest in any Borrowing Base Loan Document shall have been pledged or assigned to any Person other than the pledge to Agent;
(E) the Borrowing Base Loan Documents shall be owned one hundred percent (100%) by the Borrower or a Subsidiary Guarantor free and clear of all Liens, other than the Lien in favor of Agent for the benefit of the Lenders and the Lender Hedge Providers, and of any claims or rights of participation of any other Person, and free of any restrictions on transfer, assignment or pledge thereof;
(F) for any Borrowing Base Loans added after the date of this Agreement, the maturity date (inclusive of any extension options) of the Borrowing Base Loan must be not later than November 7, 2020, and the Borrowing Base Loan Documents for Borrowing Base Loans shall otherwise be in form and substance reasonably satisfactory to Agent;
(G) the Borrowing Base Loan shall not be a Defaulted Loan or a Delinquent Loan;
(H) except the current principal balance of the Borrowing Base Loan shall not exceed seventy-five percent (75%) of the “as-is” value of the real estate securing such Borrowing Base Loan, as approved determined by Agent, a recent appraisal reasonably satisfactory to Agent (which appraisal shall be delivered to Agent not later than twenty-four (24) months from the date of the last appraisal for such real estate delivered to Agent with respect thereto);
(I) the Collateral Borrower shall have no Indebtedness other than the Borrowing Base Loan and other Indebtedness applicable to the real estate and of the type permitted under §8.1(c) or (d);
(IJ) the Borrowing Base Loan and Borrowing Base Loan Documents shall satisfy each other condition in this Agreement and the other Loan Documents applicable thereto; and
(JK) commencing when any the Borrowing Base Loan is added as a Availability attributable to Borrowing Base Asset, when aggregated with the Initial Borrowing Base Loans, Loans shall not at any time be more than twenty twenty-five percent (2025%) of the Borrowing Base Availability shall at any time be attributable to Borrowing Base LoansTotal Commitment.
(b) In the event that all or any material portion of any Eligible Real Estate Mortgaged Property included in the calculation of the Borrowing Base Availability shall be damaged in any material respect or taken by condemnation, then such property shall no longer be included in the calculation of the Borrowing Base Availability unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational and the Agent shall receive evidence reasonably satisfactory to the Agent of the value of such real estate following such repair or restoration (both at such time and prospectively) or (ii) the Agent shall receive evidence satisfactory to the Agent (which evidence may include the availability of rent loss and other insurance) that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation. In the event that such damage or condemnation only partially affects such Eligible Real Estate included in the calculation of the Borrowing Base AvailabilityMortgaged Property, then the Required Lenders Agent may in good faith reduce the Borrowing Base Availability attributable thereto based on such damage until such time as the Required Lenders receive Agent receives evidence reasonably satisfactory to the Required Lenders Agent that the value of such real estate (both at such time and prospectively) shall no longer be materially adversely affected by such damage or condemnation.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Borrowing Base Availability, such asset shall no longer be included in the calculation of the Borrowing Base Availability unless it subsequently meets the requirements set forth herein or is otherwise approved in writing by the Required Lenders. Within five ten (510) Business Days after becoming aware of any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable to such asset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent an updated Borrowing Base Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in §§5.4, 7.20, 9.1, 9.6, 9.7, 9.1 and 9.8, 9.9 and 9.10.
Appears in 1 contract
Samples: Credit Agreement (NorthStar Healthcare Income, Inc.)
Borrowing Base Assets. (a) The Eligible Real Estate and Borrowing Base Loans included in the calculation of the Borrowing Base Availability shall at all times satisfy all of the following conditions:
(i) such Real Estate shall be Eligible Real Estate, and the Eligible Real Estate shall be owned one hundred percent (100%) in fee simple, or leased under a Ground Lease, simple by a Wholly Wholly-Owned Subsidiary of Borrower that is a Subsidiary Guarantor, in each case free and clear of all Liens and negative pledges other than the Liens permitted in §8.2(i), (iv) (as to Borrowing Base Loans only), and (ix), and other Liens approved in writing by Agent, and such Eligible Real Estate shall not have applicable to it any restriction on the sale, pledge, transfer, mortgage or assignment of such property (including any restrictions contained in any applicable organizational documents);
(ii) none of the Eligible Real Estate shall have any material title, survey, environmental, structural or other defects except as reasonably approved by the Agent and the Required Lenders;
(iii) if such Eligible Real Estate is held by a Subsidiary Guarantor, the only asset of such Subsidiary Guarantor shall be Eligible Real Estate included in the calculation of the Borrowing Base Availability;
(iii) no Person other than the Borrower has any direct or indirect ownership of any legal, equitable or beneficial interest in such Subsidiary Guarantor, and no direct or indirect ownership or other interests or rights in any such Subsidiary Guarantor shall be subject to any Lien except any Lien in favor of Agent pursuant to the Loan Documents;
(iv) each Operator’s Agreement and Lease with a Major Tenant for a Borrowing Base Property shall obligate the Operator or tenant to provide to Borrower or the applicable Subsidiary Guarantor sufficient and timely financial information, separate for the specific location at the Borrowing Base Property, to permit calculation of clause (b) none of the definition Eligible Real Estate shall be subject to any condemnation proceeding that in any event would give rise to a materially adverse effect as to the value, use of, operation of Adjusted Net Operating Income or ability to sell or finance such property, and determine whether such property shall be in compliance with federally mandated flood insurance requirements (including the maintenance of flood insurance if all or any portion of any Building is an EBITDAR Stabilized Property or located within a Newly-Built Propertyfederally designated flood hazard zone);
(v) [Intentionally Omitted];
(vi) no tenant or group of Affiliates thereof which leases ninety percent (90%) or more of the Net Rentable Area of such Real Estate (A) is in default of base rent or other material payment obligations under its respective Lease for more than seventy-five (75) days beyond the date upon which such payment obligations were due, or (B) is subject to any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution, liquidation or similar debtor relief proceeding;
(vii) the Primary License of such Eligible Real Estate shall not have been revoked or is (1) managed by a Manager approved by the subject of any revocation proceeding, no event or circumstance shall have occurred or exist which would result in the Operator thereof no longer being entitled to reimbursement Agent; and (2) operated under Medicare or Medicaid and the Operator shall be in compliance in all material respects with all applicable Healthcare Laws and accreditation and registration standards and requirements of the applicable State Regulator, in each case, as are now in effect and which may be imposed upon such Operator or the maintenance, use or operation of the Borrowing Base Properties or the provision of services a Management Agreement reasonably satisfactory to the occupants of the Borrowing Base Properties;
(viii) there shall have been at no time any change in any Major Tenant of a Borrowing Base Property (whether by assignment, substitution or otherwise) from the Major Tenants of such Borrowing Base Property as of the date of acceptance of such Real Estate as a Borrowing Base Property unless approved by Agent in writingAgent; and
(ixvi) if such Borrowing Base Asset is a Borrowing Base Loan, such Borrowing Base Loan shall at all times satisfy all of the following conditions:
(A) such Borrowing Base Loan is secured by real estate that satisfies the requirements of clauses (b), (c), (d), (f), (g), (h) and (i) of the definition of Eligible Real Estate;
(B) the real estate subject to the Borrowing Base Loan shall be owned one hundred percent (100%) in fee simple or leased under a Ground Lease by the Collateral Borrower, free and clear of all Liens other than the Liens securing the Borrowing Base Loans and other Liens approved in writing by Agent, and except as approved in writing by the Required Lenders, the Borrower, the Guarantors and their respective Subsidiaries and Affiliates shall have no direct or indirect interest in the Collateral Borrower (except for a Profits Participation);
(C) none of the real estate securing the Borrowing Base Loan shall have any material environmental, structural, title or other defects, and not be subject to any condemnation proceeding, proceeding that in any event would give rise to a materially material adverse effect as to the value, cash flow, use of, operation of or ability to sell or finance such property;
(D) Borrower’s or the applicable Subsidiary Guarantor’s entire interest in the Borrowing Base Loan shall have been assigned to Agent pursuant to the Security Documents and Agent shall have a perfected first priority security interest therein. Without limiting the foregoing, no interest in any Borrowing Base Loan Document shall have been participated, pledged or assigned to any Person other than the pledge to Agent;
(E) the Borrowing Base Loan Documents shall be owned one hundred percent (100%) by the Borrower or a Subsidiary Guarantor free and clear of all Liens, other than the Lien in favor of Agent for the benefit of the Lenders and the Lender Hedge Providers, and of any claims or rights of participation of any other Person, and free of any restrictions on transfer, assignment or pledge thereof;
(F) for any Borrowing Base Loans added after the date of this Agreement, the maturity date (inclusive of any extension options) of the Borrowing Base Loan must be not later than November 7, 2020, and the Borrowing Base Loan Documents for Borrowing Base Loans shall otherwise be in form and substance reasonably satisfactory to Agent;
(G) the Borrowing Base Loan shall not be a Defaulted Loan or a Delinquent Loan;
(H) except as approved by Agent, the Collateral Borrower shall have no Indebtedness other than the Borrowing Base Loan and other Indebtedness applicable to the real estate and of the type permitted under §8.1(c) or (d)) and there shall be no so-called “mezzanine loan” secured by the Equity Interests in such Collateral Borrower. Notwithstanding the foregoing, a Mezzanine Loan shall be permitted provided that such loan is pledged to Agent as additional Collateral pursuant to the Assignment of Documents and is subject to a Subordination and Standstill Agreement;
(I) the Borrowing Base Loan and Borrowing Base Loan Documents shall satisfy each other condition in this Agreement and the other Loan Documents applicable thereto;
(J) the real estate asset that secures such Borrowing Base Loan is open and in lease-up and has received a certificate of occupancy from the local government agency or building department if required pursuant to Applicable Law;
(K) the Borrowing Base Loan has adequate unfunded capacity based upon Borrower’s usual and customary underwriting as reasonably approved by Agent to cover estimated carry costs, interest payments and tenants costs to reach stabilization; and
(JL) commencing when any the underlying Borrowing Base Loan is added as a Borrowing Base Asset, when aggregated with must require the Initial Borrowing Base Loans, not more than twenty percent (20%) Collateral Borrower to provide financial reports to allow calculation and testing of the Borrowing Base Availability shall at any time be attributable to Borrowing Base LoansAvailability.
(b) In the event that all or any material portion of any Eligible Real Estate included in the calculation of the Borrowing Base Availability shall be damaged in any material respect or taken by condemnation, then such property shall no longer be included in the calculation of the Borrowing Base Availability unless and until (i) any damage to such real estate is repaired or restored, such real estate becomes fully operational and the Agent shall receive evidence satisfactory to the Agent of the value of such real estate following such repair or restoration (both at such time and prospectively) or (ii) the Agent shall receive evidence satisfactory to the Agent (which evidence may include the availability of rent loss and other insurance) that the value of such real estate (both at such time and prospectively) shall not be materially adversely affected by such damage or condemnation. In the event that such damage or condemnation only partially affects such Eligible Real Estate included in the calculation of the Borrowing Base Availability, then the Required Lenders Agent may in good faith reduce the Borrowing Base Availability attributable thereto based on such damage until such time as the Required Lenders receive Agent receives evidence satisfactory to the Required Lenders Agent that the value of such real estate (both at such time and prospectively) shall no longer be materially adversely affected by such damage or condemnation.
(c) Upon any asset ceasing to qualify to be included in the calculation of the Borrowing Base Availability, such asset shall no longer be included in the calculation of the Borrowing Base Availability unless otherwise approved in writing by the Required Lenders. Within five (5) Business Days after becoming aware of any such disqualification, the Borrower shall deliver to the Agent a certificate reflecting such disqualification, together with the identity of the disqualified asset, a statement as to whether any Default or Event of Default arises as a result of such disqualification, and a calculation of the Borrowing Base Availability attributable to such asset. Simultaneously with the delivery of the items required pursuant above, the Borrower shall deliver to the Agent an updated Borrowing Base Certificate demonstrating, after giving effect to such removal or disqualification, compliance with the conditions and covenants contained in §§5.4, 7.20, 7.19 and 9.1, 9.6, 9.7, 9.8, 9.9 and 9.10.
Appears in 1 contract
